/  l-*..-tXv. 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


WORKS  OF 

BRIG.-GEN.    GEORGE 

B.    DAVIS 

PUBLISHED    BY 

JOHN    WILEY    & 

SONS. 

A  Treatise  on  Military  Law 

and  the  Constitution,  Jurisdiction,  and  Procedure 

of   Courts-Martial.     8vo,  xiv  + 

754  pages,  cloth, 

$7.00;  sheep,  $7.50. 

The  Elements  of  Law. 

An  Introduction  to  the  Study 

of  the   Constitu- 

tional   and   Military   Law  of  the  United   States.     | 

8vo,  vi  4-  188  pages,  c'.oth,  $2.50. 

A  TREATISE 


ON   THE 


MILITAEY    LAW 


OF   THE 


TJKITED    STATES. 


TOGETHER  WITH  THE 


PRACTICE   AND   PROCEDURE   OF   COURTS- 
MARTIAL   AND   OTHER   MILITARY 
TRIBUNALS. 


BT 

BRiaADiER-GENERAL   GEORGE   B.  DAVIS, 

Judge-Advocate  (jEnehal,  U.  S.  A., 
Formerly  Professor  of  Law  at  the   United  States  Military  Academy. 

West  Point,  New  York. 


SECOND  EDITION.   REVISED. 
THIRD   THOUSAND. 


NEW   YOKE  : 

JOHN   WH.KY   Si   SONS. 

London  :    CHAPMAN   &   HALL,   Limited. 

1912 


Copyright,  1898, 

BY 

GEORGE  B.    DAVIS. 


1-7  ■■- 


THE  SCIENTIFIC   PRESS 

ROBERT  ORUMMONO   AND   COMPANY 

BHOOKLVN.    N.    V. 


INTRODUCTIOK 


The  history  of  the  constitutional  military  establishment  of  England,  the 
country  from  which  our  own  institutions  are  in  great  part  derived,  has 
hardly  received  the  attention  to  which,  by  its  interest  and  importance,  it  is 
fairly  entitled.  The  gradual  development  of  tlie  common  law  and  the  study 
of  that  great  body  of  maxims  and  fundamental  principles  which  we  call  the 
English  Constitution  have  been  made  the  subject  of  minute  and  painstak- 
ing inquiry;  the  corresponding  development  of  the  military  institutions  of 
the  kingdom,  however,  have  been  less  carefully  studied,  and  this  notwith- 
standing the  fact  that  the  long  controversy  between  the  sovereign  and 
Parliament,  extending  over  more  than  three,  quarters  of  a  century,  which 
culminated  in  the  Great  Revolution  of  1088,  had  to  do  not  only  witli  the 
discussion  and  settlement  of  disputed  questions  connected  with  the  mainte- 
nance of  the  military  establishment  and  the  discipline  of  the  military  forces, 
but  involved  as  well  the  relation  of  the  military  to  the  civil  power,  and  tlie 
place  of  the  former  in  the  constitutional  law  of  the  kingdom. 

It  may  be  safely  asserted  that  for  the  two  centuries  immediately  succeed- 
ing the  Norman  Conquest  the  place  assigned  to  military  laAV  was  in  no 
sense  inferior  to  tliat  occupied  by  the  common  law.  Indeed  it  was  not  until 
the  feudal  system  had  begun  to  decline  in  England  that  the  latter  began 
to  predominate,  and  gradually  to  absorb  the  civil  jurisdiction  formerly 
exercised  by  the  courts  of  the  constable  and  marshal;  and  this  absorption 
of  jurisdiction  was  due  less,  perhaps,  to  the  superior  excellence  of  the 
common  law  than  to  the  fact  that  the  kingdom  was  at  peace  with  the  con- 
tinental states,  and  that  there  were  but  few  occasions  for  the  emplovment 
of  military  forces  on  foreign  service  or  in  foreign  wars. 

The  Hundred  Years'  War  for  dominion  in  France,  in  so  far  as  it  afifected 
the  interests  of  the  English  people,  was  a  foreign  war,  carried  on  upon 
foreign  territory,  and  as  such  gave  rise  to  no  conflict  of  jurisdiction  between 
the  civil  and  military  tribunals,  but  rather  afforded  to  each  form  of  juris- 
prudence an  opportunity  for  normal  and  appropriate  development.  This 
was  especially  true  of  military  law.     Articles  or  Ordinances  of  War  were 

iii 

7708S.'? 


iv  IIS  TROD  LOTION. 

prepared  and  applied  iu  the  establislimeut  and  maintenance  of  discipline  in 
the  armies  employed  in  France,  especially  during  the  reign  of  Henry  V., 
whose  war  ordinances  have  been  preserved,  and  enable  us  to  gain  an  insight 
into  the  disciplinary  requirements  of  this  early  period. 

The  epoch  of  civil  wars,  which  occupied  the  greater  part  of  the  fourteenth 
and  fifteenth  centuries,  gave  occasion  for  the  frequent  exercise  of  martial 
la^ — a  new  and  unwelcome  form  of  government,  as  obnoxious  to  the  civil 
institutions  of  the  realm  as  it  was  detrimental  to  the  development  of  military 
law,  with  which  system  it  had  nothing  in  common.  In  the  extreme  form  in 
which  it  was  exercised  during  the  reign  of  the  Stuarts  and  the  period  of  the 
Protectorate  it  became  so  inextricably  confused  with  military  law  proper,  in 
the  minds  of  Englishmen,  as  to  contribute  not  a  little  to  defer  the  recogni- 
tion of  the  latter  as  a  part  of  the  constitutional  system  of  England.  Indeed, 
it  was  not  until  the  close  of  the  eighteenth  century  that  public  men  came 
to  understand  the  distinction  between  martial  rule  and  military  law,  and 
to  apply  the  terms  correctly  in  the  discussion  of  public  affairs. 

The  Tudor  period  has  generally  been  regarded  by  historians  as  in  the 
nature  of  a  truce  between  the  sovereign  and  Parliament.  It  was  an  era  of 
religious  rather  than  civil  agitation;  foreign  wars,  involving  important 
military  operations  on  land,  were  infrequent,  and  the  policy  of  the  Govern- 
ment, especially  during  the  long  reign  of  Elizabeth,  was  one  of  internal  and 
economic  development,  and  of  neutrality  or  non-interference  in  foreign 
affairs.  The  result  was  to  defer  the  discussion  of  purely  constitutional  ques- 
tions, and  to  delay  the  final  distribution  of  sovereign  powers  between  the 
legislative  and  executive  departments  of  the  government  for  more  than  a 
century. 

During  this  epoch,  however.  Englishmen  were  not  permitted  to  forget 
the  existence  of  martial  law;  although  the  occasions  for  its  exercise  were  less 
frequent  than  they  had  been  during  the  disturbed  reigns  of  the  Houses  of 
Lancaster  and  York,  and  were,  perhaps,  more  nearly  justified  by  the  facts 
of  existing  emergencies  than  was  the  case  during  the  first  half  of  the  period 
of  Stuart  rule. 

The  questions  which  came  up  for  discussion  and  settlement  during  the 
first  half  of  the  seventeenth  century  were  many  and  important,  and  had  to 
do  with  the  power  to  maintain  a  military  establishment,  to  determine  its 
strength  and  composition,  to  provide  for  its  support,  and  to  regulate  its 
discipline.  Of  all  of  these  questions  the  last  is  the  one  with  which  we  are 
immediately  concerned.  The  "  Ordinances  of  War  "  of  the  early  sovereigns 
had,  in  the  lapse  of  time,  given  place  to  the  modern  Articles  of  War,  based 
in  great  part  upon  the  war  ordinances  of  Gustavus  Adolphus,  the  father  of 
modern  military  discipline.  The  courts  of  the  constable  and  the  marshal, 
and  the  court  of  chivalry  had  been  replaced  by  the  council  of  war  of  the 
Stuart  period;  and  this  tribunal  had,  in  the  early  part  of  the  seventeenth 


INTRODUVTIOX.  V 

century,  given  place  to  tlic  modern  court-martial.  The  powers  of  the  con- 
stable and  marshal,  which,  as  has  been  seen,  liad  been  derived  from  the 
sovereign,  had  reverted  to  their  original  source,  and  were  now  exercised 
directly  by  him,  or  by  commanders-iu-cliief  under  authority  regularly  dele- 
gated by  royal  conimisriion.  Indeed  the  system  of  military  juri8])rudence 
had  become  so  fully  cstablishetl  tiiat,  upon  the  outbreak  of  the  Parliamentary 
wars,  the  armies  of  the  Commonwealth  were  governed  by  Articles  of  War 
similar  in  form  and  terms  to  those  which  were  relied  npon  to  regulate  dis- 
cipline in  the  royal  armies. 

Although  the  serious  differences  between  the  Crown  and  Parliament  had 
been  adjusted  by  the  formal  acceptance  of  the  Declaration  of  Rights  by 
William  and  Mary,  an  event  of  no  less  importance  than  a  serious  mutiny  was 
necessary  to  remind  Parliament  that  the  legislative  adoption  of  the  Declara- 
tion of  Rights  was  not  in  itself  a  complete  settlement  of  the  constitutional 
questions  to  which  the  reign  of  the  Stuart  sovereigns  had  given  rise;  but  it 
was  the  manner  in  which  the  question  was  disposed  of  by  Parliament  that 
gives  significance  to  its  action  as  an  epoch  in  the  development  of  military 
law.     The  urgency  of  the  occasion  was  great,  for  some  regiments  were  iii 
,  open  mutiny,  and  others  were  known  to  be  so  seriously  disaffected  as  to  give 
cause  for  serious  concern  to  the  sovereign  and  his  ministers.    The  emergency 
was  met,  most  wisely  as  the  event  proved,  by  the  enactment  of  the  Mutiny 
Act.     That  instrument,  after  declaring  that  "  the  raising  or  keeping  of  a 
standing  army  within  this  kingdom  in  time  of  peace,  unless  it  be  with  con- 
sent of  Parliament,  is  against  law,"  gives  formal  statutory  recognition  to 
the  existing  military  establishment,  as  a  force  necessary  "  for  the  safety  of 
the  kingdom";  and  then  proceeds  to  adopt  the  system  of  military  law  then 
prevailing  in  the  Army,  including  the  agency  of  the  court-martial,  as  a  means 
of  maintaining  discipline  in  the  forces  so  authorized.     Such   limitations  as 
were  deemed  necessary  to  restrict  the  operation  of  the  system  to  the  existing 
establishment  were  clearly  imposed;  the  two  most  serious  military  offenses 
— mutiny  and  desertion — were  expressly  recognized  and  made  criminal,  and 
the   power  to  try  and    punish   them   was   conferred    upon  courts-martial, 
appointed  by  the  Crown  or  by  the  Lord  General,  subject,  however,  to  the 
condition  that  the  sentences  imposed  by  those  tribunals  were  to  be  carried 
into  effect  only   when   they   had   been    approved  by   the  authority   which 
created  them.      With  a  view  to  retain  legislative  control  over  the  military 
establishment  thus  placed  within  the  protection  of  the  Constitution,  the  Act 
was  limited  in  its  operation  to  a  period  the  duration  of  which  was  especially 
set  forth  in  the  statute,  at  the  expiration  of  which  the  grant  of  power, 
unless  formally  renewed,  was  to  cease  and  determine.     It  will  thus  be  seen 
that  the  Mutiny  Act  was  by  no  means  the  least  important  of  a  series  of  enact- 
ments having  for  their  purpose  to  bring  the  existing  military  system  within 
the  operation  of  the  English  Constitution.     It  will  also  be  borne  in  mind 


VI  INTRODUCTION. 

that  this  purpose  was  accomplished  by  the  legislative  recognition  of  an  exist- 
ing system  of  military  jurisprudence,  as  ancient  in  its  origin  as  the  common 
law. 

A  little  more  than  a  century  later,  the  Congress  of  the  United  States, 
acting  deliberately  and  without  the  pressure  of  the  emergency  which  fur- 
nished an  occasion  for  the  enactment  of  the  Mutiny  Act,  gave  precisely 
similar  recognition  to  a  system  of  military  law  derived  from  the  long-estab- 
lished system  of  the  mother  country,  and  adapted  to  our  military  needs 
during  the  progress  of  a  long  and  eventful  war.  The  legislative  enactment 
which  brought  within  the  operation  of  the  newly-adopted  Constitution  a 
system  of  discipline  which  was  already  in  successful  operation,  was  made 
possible  by  the  terms  of  the  fifth  amendment  to  that  instrument,  which 
formally  excepted  "cases  arising  in  the  land  and  naval  forces"  from  the 
operation  of  the  several  clauses  which  embodied  the  guarantees  respecting 
•the  trials  of  persons  accused  of  crime  against  the  United  States. 

The  development  of  a  constitutional  military  system  in  the  United 
States  is  thus  seen  to  have  been  beset  by  fewer  difficulties  than  were 
encountered  in  the  mother  country,  and  this  was  due  in  part  to  the  fact 
that  the  question  was  practically  settled,  from  its  constitutional  side,  by  the  < 
adoption  of  the  Bill  of  Rights  and  the  enactment  of  the  Mutiny  Act,  and  in 
part  also  by  the  express  recognition  of  the  requirements  of  military  law  in 
the  fifth  of  the  amendments  to  the  Federal  Constitution.  The  experience  of 
more  than  a  century  had  demonstrated  the  wisdom  of  Parliament  in  its 
recognition  of  military  law  as  a  system  of  jurisprudence,  not  less  necessary 
to  the  well-being  of  the  state  than  the  common  law  itself,  and  none  the  less 
so  because  it  provided  for  standards  of  conduct  among  persons  constituting 
the  military  establishment,  differing  materially  from  those  regulating  the 
rights  and  obligations  of  individual  members  of  the  body  politic  in  their 
purely  civil  and  criminal  relations. 


PREFATORY  NOTE. 


The  author  takes  pleasure  in  making  this  "willing  and  grateful  acknowl- 
edgment of  the  valuable  assistance  which  has  been  afforded  him  in  the 
preparation  of  this  work  by  Brigadier-General  G.  Norman  Lieber,  Judge- 
Advocate  General  of  the  United  States  Army ;  so  great  indeed  is  the  obliga- 
tion that  the  writer  does  not  hesitate  to  say  that  whatever  of  merit  the  book 
may  be  found  to  have  is  due,  in  great  measure,  to  the  constant  support  and 
suggestive  encouragement  which  have  been  extended  to  him,  at  everv  stage 
of  the  undertaking,  by  that  able  and  accomplished  officer.  The  especial 
thanks  of  the  author  are  also  due  to  Major  Enoch  H.  Crowder  of  the  Judge- 
Advocate  General's  Department  and  to  First  Lieutenant  "Walter  A.  Bethel 
of  the  Third  Artillery,  for  the  efficient  and  helpful  services  rendered  by 
them  in  the  revision  and  criticism  of  the  manuscript  and  the  preparation 

and  publication  of  the  volume. 

vii 


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LI8T  OF  AUTHORITIES  CITED. 


XI 


IvKB,  RoUin  A.,  Lieutenant  Fifth  Regi- 
ment of  Artillery,  U.  S.  Army.  A 
Treatise  on  Military  Law.  New  York, 
1879. 

JoNEB,  Captain  Douglas,  Royal  Artillery. 
Notes  on  Military  Law.  London,  1881. 

Judge  Advocate  General,  United  States 
Army.  Digest  of  Opinions.  1  vol. 
1895. 

Laucheimer,  Charles  H..  First  Lieuten 
ant,  U.  S.   Marine  Corps.     Forms  of 
Procedure     (Naval     Courts,    Boards, 
etc.).    Washington,  1896. 

Lawbon.  John  D.  The  Law  of  Expert 
and  Opinion  Evidence.  St.  Louis, 
1883. 

The  Law  of  Presumptive  Evidence. 

San  Francisco,  1885. 

Lee.  C.  H.  The  Judge-Advocate's  Vade 
Mecum.    Richmond,  1863. 

LiEBEK,  Brigadier-General  G.  Norman, 
Judge- Advocate  General,  U.  S.  Army. 
Remarks  on  the  Army  Regulations, 
Washington,  1897. 

Macomb,  Major-General  Alexander,  U.  S. 
Army.  The  Practice  of  Courts-mar- 
tial.   New  York,  1841. 

Maltby.  Isaac.  A  Treatise  on  Courts- 
martial  and  Military  Law.  Boston, 
1813. 

Manual  of  Military  Law  (English).    1894. 

Marbhall.  John.  Writings  on  the  Fed- 
eral Constitution.    Washington.  1890. 

May,  John  Wilder.  The  Law  of  Crimes. 
Boston,  1881. 

McArthur,  John,  LL.D.  Principles  and 
Practice  of  Naval  and  Military  Courts- 
martial.  4th  Ed.  2  vols.  London, 
1813. 

Military  Law  :  Adye,  1810  ;  Benet,  1864; 
Bland,  1778  ;  Clode,  1872  ;  Colville, 
1883 :  Cox.  1888  :  D'Aguilar,  1861  ; 
DeHart.  1846;  Furse.  1896;  Grose, 
1786  :  Harwood.  1867  ;  Hough.  1834, 
1855  ;  Ives.  1879  ;  Jones.  1881  ;  Lauch- 
eimer, 1896  ;  Lee,  1863  ;  McArthur, 
1813  ;  Macomb,  1841  ;  Morrison,  1897; 
Murray,  1895;  O'Brien,  1846;  Regan, 
1877  ;  Samuel,  1816;  Simmons.  1875; 
Story.  1886  ;  Tulloch.  1887  ;  Tytler, 
1800;  Winthrop,  1897. 
MiLLKK,  Samuel  F.     Lectures  on  the  Con- 


stitution of  the  United   States.    New 
York,  1891. 
MoRDECAi,  Captain  Alfred,  U.  S.  Army. 
A  Digest  of  the  Laws  relating  to  the 
Military  Establishment  of  the  United 
States.    Washington,  1833. 
Morrison,   Captain  C.  G.,    5th   Dragoon 
Guards.     Notes  on  Military  Law,  etc. 
London,  1897. 
Murray.  Captain  Arthur,  First  Regiment 
of   Artillery,    U.    S.    Army.     Manual 
for  Courts-martial,  1895. 
Myer,  William  G.    Federal  Decisions.    30 
vols.    St.  Louis,  1884. 

Navy  Regulations  of  the  United  States, 
1896. 

O'Brien.  Lieut.  John,  United  States 
Army.  A  Treatise  on  American  Mili- 
tary Laws.    Philadelphia,  1846. 

Opinions  of  the  Attorney-General.  19  vols. 
1789-1890. 

Ibid.     Digest,  vols.  1-16.    1  vol. 

Opinions  of  the  Judge-Advocate  General 
■  U.  S.  Army.     1  vol.     1895. 

ORDRONAtTX,  John,  LL.D.  Constitu- 
tional Legislation  in  the  United  States. 
Philadelphia,  1891. 

Paschal,  George  W.,  LL.D.  The  Con- 
stitution of  the  United  States.  Wash- 
ington, D.  C,  1876. 

Phillipps,  S.  March.  A  Treatise  on  the 
Law  of  Evidence.  2  vols.  5th  Am. 
Ed.    New  York,  1868. 

PoMEROY,  J.  Norton.  An  Introduction 
to  the  Constitutional  Law  of  the 
United  States.  1  vol.  7th  Ed.  Bos- 
ton, 1883. 

Rapalje,  Stewart.  A  Treatise  on  the 
Law  of  Witnesses.     New  York,  1887. 

Regan.  Captain  James.  9th  Infantry,  U. 
S.  Army.  The  Judge-Advocale's  and 
Recorder's  Guide.    Washington,  1877. 

Regulations,  Uniied   States   Army,  1895. 

United  States  Navy,  1896. 

Reports:  U.  S  Supreme  Court.  1789- 
1897,  167  vols.;  Federal  Reporter, 
1880-1897,  80  vols. ;  Court  of  Claims. 
31  vols.;  American,  35  vols. 

Revised  Statutes  of  the  U.  S.    Ed.  1878. 

Ibid.     Supplement.    Vol.  1.    1874-1891. 

Ibid.     Supplement.    Vol   2.    1891-1895. 

Roe,  Edward  T.     Criminal  Procedure  of 


Xll 


LIST  OF  AUTlIOIiiriES  CITED. 


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1887. 

Samuel.  E.  The  Law  Military.  London, 
1816. 

Scott,  Lieut. -Col.  Robert  N.,  Third  Regi- 
ment of  Artillery,  U.  S.  Army.  An 
Analytical  Digest  of  the  Military  Laws 
of  the  United  States,  1789-1873. 
Philadelphia,  1873. 

Simmons,  Captain  Thomas  Frederick, 
Royal  Artillery.  The  Constitution 
and  Practice  of  Courts-martial.  7th 
Ed.     London,  1875. 

Stahkie,  Thomas.  A  Practical  Treatise 
on  the  Law  of  Evidence.  10th  Amer. 
Ed.    Philadelphia,  1876. 

Statutes  at  Large  of  the  United  States, 
1875-1897.    Vols.  18-28. 

Stephen,  Henry  John.  A  Treatise  on  the 
Principles  of  Pleading  in  Civil  Ac- 
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Stephen,  Sir  James  Fitzjames,  K. C.S.I; 
D.C.L.  Digest  of  the  Criminal  Law. 
London,  1877. 

Digest  of    the    Laws    of    Evidence. 

5th  Ed.     London,  1887. 

A   History  of  the  Criminal   Law  of 

England.    3  vols,     London,  1883. 

Story,  Joseph.  Commentaries  on  the 
Constitution.  5th  Ed.  2  vols.  Bos- 
ton, 1891. 

Story,  Lieut. -Col.  Philip.  Summary  of 
Military  Law  and  Procedure.  Lon- 
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Supreme  Court  Reports,  1789-1897.  167 
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Thayer,  James  Bradley.  Cases  on  Con- 
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2  vols.     Cambridge,  1894. 

Select  Cases  on  Evidence.  Cam- 
bridge, 1892. 

Tulloch,  William.  Elementary  Lectures 
on  Military  Law.  2d  Ed.  London, 
1887. 


Tytler,  Alexander  Eraser,  Judge-Advo- 
cate, District  of  North  Britain.  An 
Essay  on  Military  Law.    Dublin,  1800. 

United  States  Digest.  15  vols.  Boston, 
1878. 

New  Series,  1870-1888.  19  vols.  Bos- 
ton, 1878-1888. 

Von  Holst,  H.  The  Constitutional  Law 
of  the  United  States  of  America.  Ciii- 
cago,  1887. 

Walton,  Colonel  Clifford,  C.B.,  Assist- 
ant Adjutant-General.  Hi.'^toryof  the 
British  Army,  1660-1700.  London, 
1894. 

Waterman,  Thomas  W.  A  Digest  of 
Decisions  in  Criminal  Cases.  New 
York,  1877. 

Washbuun,  Emory,  LL.D.  A  Manual 
of  Criminal  Law.  2d  Ed.  Chicago, 
1889. 

Washington,  George.  Writings.  Ford's 
Ed.     14  vols.     New  York,  1889. 

Wharton,  Francis,  LL.D.  A  Treatise 
on  Criminal  Law.  9th  Ed  2  vols. 
Philadelphia,  1885. 

A  Treatise  on  the  Law  of  Evidence 

in  Criminal  Issues.     9th  Ed.     Phila- 
delphia, 1884. 

A  Treali.se  on  Criminal  Pleading  and 

Practice.    9th  Ed.    Philadelphia,  1889. 

State   Trials    of   the  United    States. 

Philadelphia,  1849. 

Whiting,  William.  War  Powers  under 
the  Constitution.  2d  Ed.  Boston, 
1871. 

Winthrop,  Colonel  William,  Asst.  Judge- 
Advocate  General,  U.  S.  Army.  An 
Abridgment  of  Military  Laws.  3d 
Ed.     1897. 

Military  Law.  2  vols.  2d  Ed.  Bos- 
ton, 1897. 

Digest  of  Opinions  of  the  .Judge-Ad- 
vocate General,  U.  S.  Army.  4th  Ed. 
Washington,  1895. 


TABLE  OF  CONTENTS. 


flaiPTBR  PIOK 

I.   Military  Law  :  Its  Authority  and  Sources 1 

II.   Military  Tribunals:  Courts-martial,  their  Origin  and  Function..  13 

III.  Thp:  Constitution  of  Courts-martial 17 

IV.  The  Composition  of  Couhts-mahtial 26 

V.   The  Jurisdiction  op  Courts-martial 42 

VI.    Arrest  and  Confinement 61 

VII.   Charges  and  Specifications 69 

VIII.   The  Incidents  of  the  Trial 8"3 

IX.    Punishments 16o 

X.   The  Record 191 

XI.   The  Reviewing  Authority 199 

XII.    The  Inferior  Courts-martial 211 

XIII.  Courts  op  Inquiry  :  The  Regimental  Court  for  doing  Justice 220 

XIV.  Military  Boards 229 

XV.    Evidence 244 

XVI.   Martial  Law:  Military  Government;  Military  Commissions 300 

XVII.    Habeas  Corpus 314 

XVIII.  The  Employment  op  Military  Force 323 

XIX.   The  Articles  op  War 337 

Appendices , 565 

xiii 


MILITARY   LAW. 


CHAPTER  I. 

MILITARY   LAW:   ITS   AUTHORITY   AND   SOURCES. 

Military  Law. — The  term  Military  Law  applies  to  and  includes  such 
rules  of  action  and  conduct  as  are  imposed  by  a  State  upon  persons  in  its 
military  service,  with  a  view  to  the  establishment  and  maintenance  of  mili- 
tary discipline.'  It  is  largely,  but  not  exclusively,  statutory  in  character, 
and  prescribes  the  rights  of,  and  imposes  duties  and  obligations  upon,  the 
several  classes  of  persons  composing  its  military  establishment;  it  creates 
military  tribunals,  endows  them  with  appropriate  jurisdiction  and  regulates 
their  procedure;  it  also  defines  military  offenses  and,  by  the  imposition  of 
ade([uate  penalties,  endeavors  to  prevent  their  occurrence.' 

Origin  and  History. — As  the  system  of  Military  LaAv  which  has  received 
constitutional  recognition  in  the  United  States  is  in  great  part  derived  from 

'  O'Brien,  25.  26;  De  Hart,  2;  Harwood,  7;  Benet,  7;  Ives,  9;  Wintbrop,  1:  Samuels, 
xi;  Clode,  Mil.  Law,  25-75;  Story,  Summary  of  Mil.  Law,  2-5;  Adye,  35-42:  Tytler, 
9;  Simmons,  §§80-109;  Man.  Mil.  Law,  7.  "If  a  national  army  be  established, 
it  is  indispensably  requisite  that  order  and  disripline  sliould  be  established  and  main- 
tained in  that  army.  To  effect  this,  it  is  necessary  that  the  duties  of  the  military  be 
defined  and  their  performance  enforced,  under  appropriate  penalties,  by  trilmnals 
appointed  for  that  purpose.  For  this  reason,  rules  and  articles  of  war  are  ever  found  to 
accompany  an  army.  There  is  yet  a  str  >nger  motive  for  their  establishment,  which 
relates  to  the  tranquillity  and  security  of  the  State;  for  nothin^r  could  be  mce  dan^^erous 
to  the  public  peace  and  safety  than  a  licentious  and  undisciplined  military  Such  a  force 
would  be  merely  an  armed  mob;  and  our  own  exi)erience,  as  well  as  that  of  other  nations, 
has  given  us  sad  but  useful  lessons  in  the  mischief  to  be  appreliended  from  such  an 
assemblage.  The  aim  of  all  military  legislation  should,  therefore,  be  twofold:  first,  to 
render  tlie  array  as  efficient  as  possible  against  the  public  enemy;  and  secondly,  to  deprive 
it  of  all  power  of  injuring  the  country  which  supports  it."     (O'Brien,  Mil.  Law.  25.) 

'  The  term  as  here  used  relates,  not  to  a  mere  body  of  statutes,  but  to  a  system  of 
jurisprudence,  some  of  the  provisions  of  whi'-li  are  common  to  the  military  jiolicy  of  all 
civilized  States,  both  ancient  and  modern.  It  differs  fnmi  the  Common  Law  in  respect 
to  its  subject-matter,  and  as  to  the  persons  whose  conduct  it  regulates.  In  the  United 
States  it  forms  a  part  of  a  more  extensive  body  of  laws,  enacted  by  Congress  under  the 
authority  conferred  by  .several  clauses  of  the  Constitution,  having  for  its  object  the 
creation,  support,  and  administration  of  the  constitutional  military  establishment. 


a  MILITARY  LAW. 

the  rufes  of  discipline  wliicli  prevailed  iu  the  British  Army  at  the  outbreak 
of  the  American  Revolutiou,  its  origin  and  development  can  best  be  under- 
stood by  a  brief  reference  to  the  history  of  the  military  institutions  of  the 
country  from  which  our  own  disciplinary  system  is  the  direct  inheritance. 

From  the  Norman  Conquest  to  the  Accession  of  James  I. — During  the 
period  intervening  between  the  Norman  Conquest  and  the  establishment  of 
representative  institutions  in  England,  the  sovereign  was  regarded  not  only 
as  the  fountain  of  justice,  but  as  the  ultimate  source  of  legal  authority,  and 
his  edicts  and  ordinances  had  the  obligatory  force  now  assigned  to  the  formal 
enactments  of  Parliament.  During  this  period  the  king,  by  suitable 
decrees  or  proclamations,  established  such  rules  for  the  government  of  the 
military  forces  as  seemed  to  him  proper  or  necessary; '  and  these  rules  were 
enforced  by  tribunals,  presently  to  be  described,  called  the  Constables'  and 
Marshals'  Courts  and  the  Court  of  Chivalry."  The  Court  of  Chivalry,  in  the 
course  of  time,  began  to  intrude  upon  the  jurisdiction  of  the  common-law 
courts,  and  acts  were  passed  from  time  to  time  restricting  its  authority  until, 
during  the  reign  of  Henry  VIII.,  it  finally  ceased  to  exist;  its  functions  in 
respect  to  questions  of  honor  and  pedigree  having  become  practically 
obsolete,  and  its  jurisdiction  over  military  offenses  having  been  transferred 
to  the  council  of  war,  the  predecessor  of  the  modern  court-martial. 

Although  the  control  of  the  military  establishment  gave  rise  to  occasional 
differences  of  opinion  between  the  crown  and  Parliament  during  the  reigns 
of  the  Tudor  sovereigns,  the  questions  in  controversy  were  adjusted  without 
serious  difficulty,  usually  by  the  enactment  of  statutes  calculated  to  apply 
an  appropriate  remedy  to  the  particular  wrong  complained  of;^  and  it  was 
not  until  the  accession  of  the  Stuart  sovereigns  that  the  controversy  attained 
the  importance  of  a  constitutional  question  of  serious  national  concern. 

Military  Law  subsequent  to  the  Revolution  of  1688  ;  the  Mutiny  Act.— 
In  confornuty  to    the    agreement  in  accordance  with  which  William  and 

'  The  system  of  governing:  troops  on  active  service  by  Articles  of  War  issued  under 
the  prerogative  power  of  the  crown,  wliether  issued  by  the  king  liiniself  or  by  tlie 
commanders-in-chief,  or  other  officers  holding  commissions  from  the  crown,  continued 
from  the  time  of  the  Conquest  till  long  after  the  passing  of  annual  Mutiny  Acts,  and  did 
not  actually  cease  till  the  prerogative  power  of  issuing  such  articles  was  superseded,  in 
1803,  by  a  corresponding  statutory  power  (Man.  Mil.  Law,  7).  In  the  Black  Book  of  the 
Admiralty  will  be  found  examples  of  military  laws  composed  by  the  King  (Richard  II.), 
with  the  advice  and  assistance  of  tlie  Duke  of  Lancaster  and  others.  Adye  in  his  Treatise 
on  T'ourts-Martial  Cpage  5,  note)  mentions  the  publication  of  a  pamphlet  containing  the 
Code  of  Military  Laws  for  the  government  of  the  English  Army,  under  Henry  V.,  then 
engaged  in  war  with  France.* 

'  For  an  account  of  the  jurisdiction  of  these  courts  see  the  chapter  entitled  Mimtary 
Tribunals.  See.  al.so,  for  a  history  of  the  Court  of  Chivalry,  tlie  English  Manual  of 
Military  Law,  p.  7. 

'  Such  was  the  attempt  to  define  the  jurisdiction  of  this  court  in  13  Rich.  XL,  Ch.  2, 
and  1  Henrv  IV..  Ch.  4;  see,  also,  Salkeld's  Reports,  533,  and  Blackstone's  Commentaries, 
Book  III.,  pp.  104,  105. 

*  Grosft  in  the  first  edition  of  his  Militarv  .-Vntiqulties  (1788)  mentions  the  Ordinances  of  Kine:  John; 
the  (^barter  of  Richard  I.  for  th*-  Koveinment  of  those  going  by  sea  to  the  Holy  Laud;  the  Ordinances 
of  Richard  II.,  Henry  V.,  and  Henry  VIII. 


ITS  AUTHORirr  AND  SOURCES.  3 

Mary  ascended  the  throne  in  1G88,  which,  as  embodied  in  the  Bill  of 
Kights,  has  since  been  regarded  as  an  important  part  of  the  British  Con- 
stitution, the  right  of  command  and  the  power  to  enforce  and  maintain 
discipline  were  vested  in  the  sovereign,  as  the  constitutional  commander- 
in-chief;  but  these  powers  were  to  be  regulated  in  their  exercise  by  the 
terms  of  an  important  statute  called  the  Mutiny  Act,'  the  scope  and  purpose 
of  which  will  presently  be  explained.  It  is  sutticient  to  observe  at  this  point 
that  the  Mutiny  Act  recognized  mutiny  and  desertion  as  two  of  the  most 
serious  military  offenses  and  authorized  their  trial  and  punishment  by  court- 
martial.  All  nuitters  affecting  discipline,  however,  which  were  not  expressly 
provided  for  in  the  Mutiny  Act  were  left  to  be  regulated  by  the  royal 
prerogative,  and  in  conformity  to  such  disciplinary  rules  as  the  sovereign 
might  see  fit  to  impose.  Indeed,  such  a  body  of  rules  alreadv  existed  in  a 
code  of  regulations,  known  as  the  Articles  of  War,  which  had  been  issued 
by  James  II.  in  1680.'  These  Articles,  therefore,  though  frequently  added 
to  and  amended,  or  modified,  by  the  issue  of  subsequent  articles,  continued 
in  force,  side  by  side  with  the  Mutiny  Act,  and  in  subordination  to  that 
instrument,  until  1879,  wlien  the  Mutiny  Act  and  Articles  of  War  were 
merged  in  an  enactment  known  as  the  Army  Discipline  Act,  which,  as 
re-enacted  in  tlie  Army  Act  of  1881,  is  still  in  force  throughout  the 
British  Empire.  In  strictness,  however,  the  Army  Act  of  1881  "has,  of 
itself,  no  force,  but  requires  to  be  brought  into  operation  annually  by  an- 
other Act  of  Parliament,  thus  securing  the  constitutional  principle  of  the 
control  of  Parliament  over  the  discipline  requisite  for  the  government  of 
the  Army.'" 

The  Mutiny  Act  and  the  Articles  of  War. — It  will  thus  be  seen  that 
from  1089,  the  date  of  the  first  Mutiny  Act,  until  1881,  the  date  of  the 
permanent  Army  Discipline  Act,  military  discipline  was  regulated  in 
England  by  two  authoritative  instruments:  (1)  the  Mutiny  Act,*  which 
was  statutory  in  character  and  contained  the  more  important  disciplinary 


■  1  William  and  Afarv,  Chap.  5. 

»  ("lotie,  Mil.  Law.  38. 

'  Man.  Mil.  Law,  18,  19.  It  is  proper  to  observe  in  this  connection  that  the  Articles 
of  168fi,  whicl^  were  in  force  at  the  date  of  the  passatje  of  the  Mutiny  Act.  were  not 
annulit'ii  or  even  rejilaced  by  that  enactment,  but  were  rather  recognized,  by  implication, 
as  a  supplementary  body  of  rules  for  the  trovernment  of  the  military  forci\s.  which  were 
applicable  to  all  disciplinary  (juestions  not  covered  by  the  express  terms  of  that  statute. 
They  therefore  continued  to  exist  side  by  side  with  that  instrument,  and  were  added  to 
and  amended  by  the  crown  from  time  to  time,  as  tlie  necessities  of  tlie  service  demanded, 
until  1803.  when  the  prerogative  power  of  issuin-^  such  articles  \vas  replaced  bv  a  corre- 
spoiidinof  statutory  power.* 

*  For  military  offenses,  created  by  statute,  prior  to  the  enai'tment  of  the  Mutiny  Act, 
see  18  Henry  W\.,  by  which  desertion  was  made  a  felony:  7  Henry  VH. .  Chap.  1,'and  3 
Henry  VHL,  Chap.  .5,  by  which  that  offen.se  was  excluded  from  benefit  of  cler^v.  Bv  2 
and  3  Edward  VL',  Chaji.  2,  desertion  was  apain  made  a  felony,  without  benefit  of  clergy, 
and  a  number  of  other  military  offenses  were  defined  and  made  punishable. 


*  53  Geo.  III..  Ch.  17,  Sec.  146. 


4  MILITARY  LAW. 

provisions,  together  with  the  power  to  appoint  the  several  military  tribunals; 
and  (2)  the  Articles  of  War,  issued  by  the  sovereign,  and  so  non-statutory 
in  character,  containing  the  great  body  of  rules  for  the  government  and 
discipline  of  the  military  forces  of  the  crown. 

The  Articles  of  War  were  added  to  and  amended  from  time  to  time,  as 
occasion  demanded,  and  were  in  force  throughout  the  realm  at  the  outbreak 
of  the  American  Revolution  in  1775.  As  a  consequence,  the  Mutiny  Act 
and  Articles  of  War  were  well  known  to  the  colonists  in  America,  and  when 
the  royal  troops  served  in  conjunction  with  the  colonial  forces  during  the 
wars  with  the  French  and  Indians,  prior  to  the  Revolution,  both  species  of 
military  force  were  governed  by  their  provisions.  At  the  outbreak  of 
hostilities  in  1775,  the  Revolutionary  Congress  found  itself  confronted  with 
the  necessity  of  raising  and  disciplining  armies,  and,  for  the  reason  above 
stated,  turned  to  the  British  military  code  as  a  body  of  disciplinary  rules 
with  the  scope  and  operation  of  which  the  troops  of  the  several  colonies  were 
already  familiar.  With  some  modifications,  therefore,  the  Mutiny  Act  anc^ 
the  Articles  of  War  then  in  force  in  the  British  Army  were  adopted  by  th( 
Congress  for  the  government  of  the  Armies  of  the  United  States.' 

Classification  of  Military  Law. — The  rules  regulating  the  conduct  of 
military  persons  in  the  performance  of  their  duties,  like  those  which  control 
the  conduct  of  the  general  body  of  citizens,  are  in  part  statutory  and  in  part 
embodied  in  orders  and  regulations  in  conformity  thereto;  a  considerable 
part,  however,  of  the  military  law  now  in  force  in  the  United  States  Army 
is  derived  from  usages,  long  adhered  to  in  the  military  establishment,  called 
customs  of  service,  the  nature  of  which  will  presently  be  explained.  These 
laws  are  therefore  susceptible  of  classification,  according  to  their  form,  into 
written  and  umoritten  laivs.     The  tvritten  military  law  consists  of: 

1.  The  Enactments  of  Congress  respecting  the  Military  Estahlishment.^ — 
Of  the  several  enactments  falling  under  this  head  the  most  important  are  to 
be  found  in  the  body  of  statutory  rules,  enacted  under  authority  conferred 
by  several  clauses  of  tlie  Constitution,  which  are  technically  known  as  the 
Rules  and  Articles  of  War.'  Although  the  Articles  of  War  as  revised  or 
amended,  from  time  to  time,  by  the  anthority  of  Congress  contain  the 
greater  part  of  the  Military  Law  proper  of  the  United  States,  many 
important  statutory  provisions  respecting  the  discipline  and  administration 

'  The  first  set  of  Articles  of  War  was  adopted  by  Congress  by  resolution  of  June  30, 
1775  (1  .Journal  of  Cong. .  90) ;  these  Articles  were  repealed  and  replaced  by  those  authorized 
by  the  resolution  of  September  20,  1776  (1  ibid.,  435-482).  See  the  chapter  entitled  The 
Articles  of  Wak. 

'  These  enactments  derive  their  authority  from  the  several  clauses  of  Section  8, 
Article  I  of  the  Constitution  which  vest  in  Congress  the  power  (1)  to  declare  war, 
grant  letters  of  marque  and  reprisal,  and  make  rules  concerning  captures  on  land  or 
water;  (2)  to  raise  and  support  armies;  and  (3)  to  make  rules  for  the  government  and 
regulation  of  the  land  and  naval  forces. 

*  For  a  history  of  the  Articles  of  War  see  the  chapter  so  entitled. 


ITS  AUTHORITY  AND  SOURCES.  '6 

of  the  Army  are  not  ombruced  in  the  Articles,  but  are  to  be  found  in  the 
Revised  Statutes  and  in  the  biennial  volumes  of  Statutes  at  Large;  tlie 
former  containing  a  codification  of  the  laws  of  tlie  United  States  -which  were 
in  force  at  the  date  of  its  enactment,'  and  the  latter  containing  the  statutes 
subsequently  enacted.' 

Distinction  between  Military  mid  Martial  Law. — It  is  proper  to  observe, 
at  this  point,  that  the  terms  military  law  and  martial  law  are  by  no  means 
synonymous.  Military  Law,  as  has  been  seen,  is  in  great  part  statutory  in 
character  and  regulates  the  conduct  of  military  persons  at  all  times  and  in 
all  places,  without  as  well  as  within  the  territorial  jurisdiction  of  the  United 
States;  that  is,  military  law  is  applicable  to  certain  persons,  not  only  in  time 
of  peace,  but  in  time  of  war  as  well,  and  its  operation  is  not  restricted  to 
the  territory  of  the  United  States,  but  follows  its  forces  wherever  they  may 
go  in  the  performance  of  lawful  military  duty  or  in  the  prosecution  of  a 
legitinuite  and  duly  authorized  military  undertaking.  The  Naval  Articles 
of  War,  for  example,  do  not  cease  to  be  binding  upon  the  officers  and  men 
who  constitute  the  crew  of  a  vessel  of  war,  when  they  pass  from  the  territory 
of  the  United  States  into  the  high  seas;  indeed,  by  the  comity  of  nations, 
those  laws  continue  to  be  operative  while  such  vessel  is  in  the  territorial 
waters  of  a  foreign  State.  So,  too,  the  Articles  of  War  continue  in  force 
and  have  extra-territorial  operation  in  a  military  command  engaged  in  the 
pursuit  of  hostile  Indians  begun  in  the  United  States  but  continued  in 
Mexican  territory,  under  the  authority  conferred  by  a  recent  convention 
with  that  power.  The  military  laws  of  the  United  States  had  the  same 
binding  force  in  the  armies  of  Generals  Scott  and  Taylor  while  operating  in 
Mexico  that  they  had  in  respect  to  those  portions  of  the  Army  which 
remained  within  its  territorial  jurisdiction  during  that  period.  Military  law 
has,  also,  chietly  to  do  with  the  acts  and  relations  of  military  persons;  it 
applies  to  the  conduct  of  citizens  in  an  exceedingly  limited  number  of  cases, 
in  each  of  which  there  must  be  the  express  authority  of  an  enactment  of 
Congress. 

Martial  law,  on  the  other  hand,  is  not  statutory  in  character,  and  arises, 
in  every  case,  out  of  strict  military  necessity.  Its  proclamation,  or  estab- 
lishment, is  not  expressly  authorized  by  any  of  the  provisions  of  the  Consti- 
tution; it  comes  into  being,  as  will  hereafter  be  seen,  only  in  the  territory 
of  an  enemy  in  time  of  war,  or  in  a  part  of  the  territory  of  the  United 
States  in  which  the  proper  civil  authority  is,  for  some  controlling  reason, 
nnable  for  tlie  time  to  exercise  its  proper  functions.  It  disappears  when 
such  forcible  resistance  to  the  operation  of  the  law  has  been  overcome  or 


'  Act  of  June  20.  1874  (18  Stat,  at  Larp^e,  113). 

"■  The  18th  and  all  subsequent  vohinies  of  the  Statutes  at  Lartje  contain  provisions  in 
relation  to  the  tnilitarv  establishment  which  are  of  date  subsequent  to  the  enactment  of 
the  Revised  Statutes. 


6  MILITARY   LAW. 

has  ceased  to  exist,  and  the  civil  authorities  liave  heeii  enabled  to  resume 
the  exercise  of  their  appropriate  functions.' 

•2.  The  Decisions  of  Courts. — It  is  the  duty  of  the  several  Federal  courts, 
under  the  Constitution,  to  apply  the  laws  of  the  United  States  in  the 
decision  of  cases  arising  under  them.  In  the  performance  of  this  duty, 
these  tribunals  tind  it  necessary,  from  time  to  time,  to  interpret  the  laws; 
that  is,  to  place  an  authoritative  construction  upon  the  enactments  of 
Congress  which  come  before  them  for  adjudication.  The  decisions  rendered 
in  such  cases  are  of  equal  authority  with  the  statutes  upon  which  they  are 
based  and,  until  reversed  or  overruled,  have  similar  obligatory  force.' 
Many  important  questions  respecting  military  affairs  have  come  before  these 
courts  for  decision — a  number  of  such  questions,  indeed,  have  been  decided 
by  the  Supreme  Court  of  the  United  States,  the  highest  judicial  authority 
known  to  the  Constitution.  Others  have  been  passed  upon  by  the  Circuit 
and  District  Courts  and  the  Court  of  Claims.  Tlie  decisions  so  rendered 
are  of  the  highest  authority  upon  the  subjects  to  which  they  relate. 

3.  Decisions  of  the  President,  Opinions  of  the  Attorney- General,  of  the 
Secretary  of  War,  the  Judge- Advocate  General,  etc. — Closely  related  to  the 
decisions  of  courts  in  point  of  authority  are  the  decisions  of  the  President 
and  of  the  heads  of  the  several  executive  departments  in  matters  coming 
within  their  respective  jurisdictions.  Under  this  head  fall  the  opinions  of 
the  Attorney-General,  the  constitutional  law  adviser  of  the  executive  branch 
of  the  Government;'  the  decisions  of  the  Secretary  of  War,  as  the  military 
representative  of  the  President,  those  of  the  Commanding  General  of  the 
Army,  and  the  opinions  of  the  Judge- Advocate  General  in  matters  relating 
to  military  law  and  the  practice  and  procedure  of  courts-martial.  The 
rulings  and  decisions  of  the  several  authorities  competent  to  convene  general 
courts-martial  are  also  obligatory  within  the  spheres  of  their  respective 
commands. 

Army  Regulations. —Next  in  point  of  authority  to  the  formal  enact- 
ments of  Congress  and  the  decisions  of  courts  may  be  mentioned  the 
General  Regulations  or  Standing  Orders  of  the  Army.  This  term  applies 
to  a  body  of  administrative  rules  relating  to  the  management  of  military 
affairs  and  the  performance  of  military  duties,  issued  by  the  I^resident  as  the 
head  of  the  executive  branch  of  the  Government.  While  these  executive 
utterances  have  the  obligatory  force  of  law,"  they  are,  in  this  regard,  inferior' 


'  See  the  chapter  entitled  Maktial  Law:  Military  Government. 

"  Cooley,  Const.  Law,  146,  147.  ^^^    ^  .^.^     on/,    r,    ,.  ,,    cno 

»  See  Sections  354,  356-358  Rev.  Stat. ;  1  Opin.  Att  -Gen.,  211;  6  ibid.,  326;  7  ibid.,  692; 

lOiWd.,  267;  11  i7nd..  189.  .      .     ,       ,       v.  a^  ^a 

*  The  Supreme  Court  has  repeatedly  recognized  the  legality  and  force  ot  Array 
Rei'ulations  :  "The  Armv  Regulations,  when  sanctioned  by  the  President,  have  the 
force  of  law  because  it  is  done  bv  liirn  bv  the  authority  of  law."  (V .  S.  vs.  Freeman, 
3  How  ,  567  )  "  As  to  the  Army  Regulations,  this  court  has  too  repeatedly  said  that  they 
have  the  force  of  law,  to  make"it  proper  to  discuss  that  point  anew."     (Gratiot  vs.  U.  S., 


ITS  AUTIIOETTY  AXD  SOURCES.  7 

to  statutes,  and  it  is  therefore  essential  to  tlieir  validity,  as  will  presently  be 
seen,  that  they  shall  not  be  in  conflict  with  the  formal  enactments  of 
Congress. ' 

Conformity  to  Statutes. — Army  regulations  j)roper  are  merely  executive 
or  administrative  rules  and  directions  as  distinguished  from  statutes.  A 
regulation  cannot  legislate,  nor  can  it  contravene  the  statute  law.  A  regu- 
lation in  conflict  with  an  existing  Act  of  Congress  can  have  no  legal  effect; 
if,  subsequently  to  the  issue  of  a  regulation,  an  Act  is  passed  with  which  it 
conflicts,  it  becomes  at  once  inoperative."     Regulations,  like  statutes,  are 


4  How.,  118.)  "  The  power  of  the  Executive  to  establish  rules  and  regulatious  lor  the 
government  of  the  Army  is  undoubted."  (U.  S.  v.  Eliason,  16  Pet.,  Wl.)  "  The  Army 
Regulations  derive  their  force  from  the  power  of  the  President  as  coiumander-in-cliief, 
and  are  binding  upon  all  within  the  sphere  of  his  legal  and  constitutional  authority." 
(Kurtz  vs.  Mortitt,  115  U.  S.,  503.)  See  also  Swaiin  vs.  U.  tS.,  165  l .  S.,  553,  decided  by 
the  Supreme  Court,  March  1.  1897. 

The  term  "  Regulations  of  an  Executive  Department"  describes  rules  and  regulations 
relating  to  subjects  on  which  a  Department  acts,  which  are  made  by  the  head  under  an 
Act  of  Congress  conferring  that  power,  and  thereby  giving  to  such  regulations  the  force 
of  law.  A  mere  order  of  the  President  or  of  a  Secretary  is  not  a  regulation.  Harvey  v». 
U.  S.,  3  C.  Cls.  R.,  38,  42;  Dig.  Opin.  J.  A.  Gen.,  166,  par.  1,  and  note  1.  A  "  regula- 
tion "  affects  a  class  of  officers  ;  an  "  instruction  "  is  a  direction  to  govern  the  conduct  of 
the  particular  officer  to  whom  it  is  addressed.  Landram  ra.  U.  S.,  16  C.  Cls.  R.,  74.  The 
Army  Regulations  when  sanctioned  by  the  President  have  the  force  of  law,  because  it  is 
done  by  him  by  the  authoritv  of  law.  U.  S.  v.t.  Freeman,  3  How.,  ,556;  (Jratiot  r-s.  V.  S., 
4  How!,  80:   hlr  parte  Reed,'lOO  U.  S.,  13;    Smith  vs.  U.  S.,  23  C.  Cls.  R.  452. 

When  Congress  permits  regulations  to  be  formulated  and  published  and  carried  into 
effect  from  year  to  vi^ar,  the  legislative  ratification  must  be  implied.  Maddox  vs.  U.  S., 
20  C.  Cls.  R  ,  193,  198. 

The  authority  of  the  head  of  an  Executive  Department  to  issue  orders,  regulations, 
and  instructions,  with  the  approval  of  the  President,  is  subject  to  the  condition, 
necessarily  implied,  that  they  must  l)e  consistent  with  the  statutes  which  have  been 
enacted  by  Congress.  U.  S.  vs.  Syraonds,  120  U.  S. ,  46,  49;  U.  S.  vs.  Bishop,  idem,  51; 
Dig.  Opin.  J.  A.  Gen..  166,  par.  1,  note  2;  par.  6,  p.  168.  Regulations  can  have  no 
retroactive  effect.  U.  S.  vs.  Davis,  132  U.  S. ,  334.  Provision  of  statute  exists  by  which 
the  statute  regulations  of  the  Army  may,  within  certain  limits,  be  altered  by  the  Secre- 
tary of  War,  but  there  is  no  such  provision  in  regard  to  the  statute  regulations  of  the 
Navy.  6  Opin.  Att.-Gen.,  10;  %  ibid.,  337.  The  same  discrepancy  exists  in  the  military 
law  of  Great  Britain.     Ibid. 

Regulations  prescribed  and  framed  by  the  Secretary  of  War  and  which  are  intended 
for  the  direction  and  government  of  the  officers  of  the  Army  and  agents  of  the  Depart- 
ment do  not  biiul  the  conunander-in-chief  nor  the  head  of  the  War  Department.  Burns 
vs.  U.  S.,  12  Wall.,  246;  Smiths.  U.  S.,24C.  Cls  R.,  209,  215.  But  see  Arthur  r«.  U.  S., 
16  0.  Cls.  W.,  422,  and  U.  S.  vs.  Burrows,  1  Abb..  351.  Regulations  mhi\<^  pitrsitant  to 
law,  certain  regulations  respecting  the  Civil  Service  for  example,  are  )»indintr  even  upon 
the  Executive,  and  the  heads  of  the  several  Executive  Department-^,  un'il  rlianced. 

Regulations  which  heads  of  Departments  are  expressly  authorized  to  make,  in  which 
the  public  is  interested,  l)ecome  a  jiart  of  that  body  of  public  records  of  which  the 
courts  take  judicial  notice.     Caba  vs.  V .  S.,  152  V .  S.,  211. 

'  For  an  able  and  exhaustive  discussion  of  this  subject  from  all  points  of  view,  see  the 
"  Remarks  on  the  .\rmy  Regulations  "  by  ,ludge-.\dvocate  (ieneral  G.  Norman  Lieber.  of 
the  United  States  Army;  Renet,  8,  9;  Ives.  18-20;  Winthrop.  17-37;  Tvtier.  17-31; 
Adve,  4,  5;  Simmons,  4^^82-84;  Clode,  .Mil.  Law,  13-15;  Man.  Mil.  Law,  7-18-  Dio-  j' 
A.  Gen.,  166-169. 

'  Dig.  J  k.  Gen.  166,  par.  1;  Und..  168,  par.  6.  Army  re<rulations  are  not  to  be  con- 
founded with  the  "rules  for  the  government  and  regulation  of  the  land  (and  naval) 
forces  "  which  Congress  is  empowered  to  make  by  Sec.  8,  .\rt.  I,  of  the  Constitution  ; 
these  being,  o{  course,  statutory  rules.  The  use  in  this  section  of  the  word  "  regula- 
tion ■' ;  the  fact  that  the  publislie<l  Army  Regulations  contain  sundry  statutory  provisions 
not  distinguished  from  the  mass  of  regulations  proper,  and  embrace  also  some  subjects 


8  MILITARY  LAW. 

intended  to  operate  in  the  future,  and  are  not  to  be  given  retroactive  effect 
unless  their  language  clearly  requires  it. ' 

Classification. — Regulations  are  susceptible  of  classification  under  the 
following  heads: 

(1)  Those  which  have  received  the  sanction  of  Congress.  These  cannot 
be  altered,  nor  can  exceptions  to  them  be  made,  by  the  executive  authority, 
unless  the  regulations  themselves  provide  for  it.  In  reality,  the  approval 
of  Congress  makes  them  legislative  regulations,  and  they  might  therefore  be 
more  strictly  classified  with  other  statutory  regulations  with  reference  to 
subjects  of  military  administration.  They  are,  however,  included  under 
the  general  head  of  Army  Regulations,  as  approved  codes  of  executive 
regulations.' 

■which  seem  scarcely  within  the  scope  of  executive  direction  or  military  orders,  but  to 
pertain  rather  to  the  province  of  the  statute  law  ;  and  the  further  fact  that  the  Army 
Regulations  as  a  body  received  a  special  recognition  in  the  Act  of  July  28,  1866 — 
these  circumstances  have  contributed  to  confuse  regulations  with  statutes  much  to  the 
embarrassment  of  the  student  of  military  law.  Regulations  proper  (unlike  Articles 
of  War,  which  are  statutes)  are  simply  orders  and  directions  made  and  published  to  the 
Army  by  the  President,  either  as  commander-in-chief,  for  the  purposes  of  the  exercise 
of  command  over  the  Army,  or  as  Executive,  for  the  purposes  of  the  execution  of 
powers  vested  in  him  by  law.  By  Congress,  indeed,  the  President  or  Secretary  of 
War  is  sometimes  expressly  required  to  make  special  regulations  for  special  objects. 
Such  regulations,  however,  are  not  of  the  class  of  general  army  regulations  proper. 
These  may  be  made  by  the  President  at  any  time,  at  his  discretion,  and  of  his  own 
authority. 

That" regulations  promulgated  through  the  Secretary  of  War  are  to  be  "  received  as 
the  acts  of  the  Executive,"  see  IT.  S.  vs.  Eliason,  16  Peters,  301;  IT.  S.  vs.  Webster, 
Daveis,  59:  U.  S.  vs.  Freeman,  1  Wood.  &  Minot,  50,  51;  Lockington's  Case,  Brightly, 
288;  McCall's  Case,  5  Philad.,  289;  In  Matter  of  Spangler,  11  Mich.,  323. 

An  authority  which  can  legally  be  vested  by  legislation  only,  cannot  of  course  be 
conferred  bv  an  executive  regulation.  Thus  held  that  the  expenditure  of  the  proceeds 
of  the  sale  of  articles  manufactured  by  the  prisoners  at  the  Military  Prison,  such  pro- 
ceeds being  public  funds,  could  not  properly  be  the  subject  of  an  army  regulation.  Dig. 
J.  A.  Gen.,  167,  par.  2. 

As  illustrating  the  distinction  between  statutes  and  regulations,  and  the  principle  that 
reo-ulations  can  have  force  only  so  far  as  they  are  not  inconsi.stent  with  the  statute  law, 
see  U.  S.  vs.  Webster,  Davris,  56-59,  and  2  Ware,  54-60;  Boody  vs.  U.  S.,  1  Wood.  & 
Minot  164-  McCall's  Case.  5  Philad.,  259;  InreGriner,  16  Wise,  434;  Magruder  vs.  U.  S.. 
Devereux.  148;  1  Opins.  Att.-Gen.,  469;  4  id.,  56-63,  225-7;  6  id.,  10,  215,  365;  8  id.,  343; 
11  id.,  254;  O'Brien,  31. 

As  to  the  inferior  force  and  obligation  of  the  British  Army  Regulations  as  compared 
with  the  Mutiny  Act  (and  Articles  of  War  thereby  authorized),  see  Samuel,  193-197. 
Clode  fMil.  &  Mar.  Law.  p.  55)  illustrates  the  nature  of  these  Regulations  in  notmg  that 
originally  "each  colonel  had  his  own  Standing  Orders— no  general  Regulations  being 
in  existence — for  the  discipline  and  exercise  of  his  regiment." 

'  Dig.  .1.  A.  Gen.,  168,  par.  7.  v  •      j 

»  Lieber,  Remarks  on  the  Armv  Regulations.  An  impression  seems  to  have  existed 
that  a  peculiar  "  force  of  law"  is  given  to  regulations  by  their  approval  by  Congress, 
but  it  seems  to  be  an  erroneous  one.  If,  as  above  said,  the  making  of  regulations  is 
within  the  jurisdiction  both  of  Congress  and  the  President,  but  the  authority  of  Congress 
is  superior  to  that  of  the  President,  it  follows  that  when  regulations  are  approved  by 
Congress  they  cannot  be  altered  by  him  until  the  approval  is  removed.  To  this  extent 
regulations  approved  bv  Congress  may  be  said  to  liave  a  superior  force  of  law  to  those 
not  thus  approved,  but  "this  is  not  the  erroneous  impression  referred  to.  Precisely  what 
this  is  is  not  clear,  but  it  seems  to  have  been  believed  tliat  the  approval  of  regulations 
by  Congress  makes  them  of  higher  obligation.  This,  however,  is  not  true. 
Whether  approved  bv  Congress  or  not,  tbev  have,  so  long  and  so  far  as  they  are  in  force, 
the   force  of  law,   and   this  cannot  be   divided  into  degrees.     The  distinction,  m  thia 


ITS  AUTHORITY  AND  SOURCES.  9 

(2)  Those  that  are  made  pursuant  to  and  in  aid  of  a  statute.  Tliese  (if 
it  be  not  prohibited  by  the  statute)  may  be  modified  by  the  executive 
authority,  but  until  this  is  done  they  are  binding  as  well  on  the  authority 
that  made  them  as  on  others.  Examples  of  regulations  of  this  class  are 
those  relating  to  the  examination  and  promotion  of  enlisted  men,  made 
pursuant  to  the  Act  of  Congre.ss  of  July  30,  1892,  and  the  executive  order 
of  March  20,  1895,  prescribing  limits  of  punishment.' 

(3)  Those  emanating  from,  and  depending  upon,  the  constitutional/, 
authority  of  the  President  as  commander-in-chief  of  the  Army.  These  con- 
stitute by  far  the  greater  part  of  the  Army  Regulations.  They  are  not  only 
modified  at  will  by  the  President,  but  exemptions  from  particular  regulations 
are  given  in  exceptional  cases;  the  exercise  of  this  power  with  reference  to 
them  being  found  necessary.  "  The  authority  which  makes  them  [regula- 
tions] can  modify  or  suspend  them  as  to  any  case,  or  class  of  cases,  or 
generally."  '■*  Under  this  head  fall  the  regulations  respecting  military  com- 
mand, those  in  relation  to  salutes,  ceremonies,  and  military  honors,  as  well 
as  those  which  control  the  routine  of  military  duty,  wherever  performed,  in 
garrison  or  in  the  field,  together  with  those  relating  to  the  conduct  of  mili- 
tary operations  and  those  affecting  orders  and  official  correspondence. 

(4)  Departmental  regulations,  made  by  virtue  of  the  authority  conferred 
by  section  161,  Kevised  Statutes,  on  the  head  of  each  Department,  "to 
prescribe  regulations  not  inconsistent  with  law,  for  the  government  of  his 
Department,  the  conduct  of  its  officers  and  clerks,  the  distribution  and  per- 
formance of  its  business,  and  the  custody,  use,  and  preservation  of  its 
records,  papers,  and  property  appertaining  thereto."  ' 

Mere  repetitions  of  legislative  enactments  are  not  included  under  any  of 
these  heads.* 

Military   Orders. — Orders  are  authoritative    directions,    respecting  the 

respect,  that  has  sometimes  been  made  between  regulations  approved  by  Congress  and 
those  not  thus  approved  is  misleading.     Ibid.,  p.  7. 

>  Thus  it  was  held  in  U.  S.  vs.  Barrows  (1  Abbott,  351;  24  Fed.  Cases,  1018)  that  a 
regulation  of  the  Treasury  Department,  made  in  pursuance  of  an  Act  of  Congress, 
becomes  a  part  of  the  law,  and  is  of  the  same  force  as  if  incorporated  in  the  body  of  tbe 
Act  itself.     Ibid.,  p.  4. 

'  Lieber,  Remarks  on  Army  Regs.,  p.  4:  5  Dec.  First  Comptroller,  29;  and  see  art. 
1  of  Circular  No.  4,  1897,  A.  G.  O.,  and  U.  S.  vs.  Eliason,  16  Pet.,  302;  also  Daviss  Mili- 
tary Laws,  p.  146. 

•  Lieber,  Remarks  on  .\rmy  Rpgs. ,  p.  4. 

*  23  Ct.  Cls.,  460;  3  id.,  38.  The  executive  retrulations  of  the  British  military  ad- 
ministration consist  principally  of  the  Rules  of  Procedure,  the  Queen's  Regulations,  and 
Roval  Warrants.  The  Rules  of  Procedure  are  authorized  by  the  Army  Act  and  prescribe 
the  regulations  for  the  formation  of  military  courts,  the  trial  of  oflFenders,  and  the  ex- 
ecution of  sentences;  the  Queen's  Regulations  relate  to  the  interior  economy  of  corps,  the 
maintenance  of  discipline,  and  the  ])owers  and  duties  of  commanding  officers,  and 
supplement  the  Army  Act  as  to  offenses  against  enli.stment  and  the  disposal  of  pris 
oners;  and  Royal  Warrants  prescribe  the  permanent  regulations  as  to  the  govern- 
ment, discipline,  pay,  promotion,  and  conditions  'of  service.  (Pratt's  Militarv  Law, 
London,  1893.) 


10  MILITARY  LAW. 

military  service,  issued  by  the  President,  as  the  constitutional  commander- 
in-chief,  or  by  his  subordinate  commanders,  with  a  view  to  regulate  the 
conduct  of  military  persons,  or  control  the  movements  or  operations  of 
individuals  or  organizations  under  their  several  commands.'  The  orders  of 
the  President  are  assimilated  to  regulations  in  all  matters  respecting  their 
sanction  and  operation;  indeed,  the  General  Regulations  are  sometimes 
called  the  Standing  Orders  of  the  Army.  Orders  issued  by  subordinate  com- 
manders operate  only  within  the  sphere  of  their  military  authority,  and 
bear,  in  some  respects,  the  same  relation  to  the  Army  Regulations  and  the 
orders  of  superior  commanders  that  the  latter  bear  to  the  enactments  of 
Congress.  As  disobedience  to  the  lawful  orders  of  a  superior  officer  is  given 
the  character  of  a  military  olfense  by  the  21st  Article  of  War,  such  utter- 
ances are  given  an  additional  sanction  by  the  terms  of  that  article  which 
makes  such  disobedience  punishable  at  the  discretion  of  a  court-martial. 

The  Unwritten  Military  Law ;  the  Custom  of  War  ;  Customs  of  Service. 
— The  oath  taken  by  each  member  of  a  court-martial  requires  him,  in  a 
certain  case,  to  administer  justice  in  accordance  with  "  the  custom  of  war 
in  like  cases."  The  unwritten  military  law,  made  up  of  customs  of  service, 
or  of  "  the  custom  of  war  "  as  it  is  called  in  the  81th  Article  of  War,  is,  in 
substance,  a  form  of  customary  law  developed  from  usages  of  the  military 
service  so  constantly  repeated  and  so  long  adhered  to  as  to  confer  upon  it 
the  character  of  an  authoritative  rule  of  action.  It  is  followed  in  cases  in 
respect  to  which  the  written  law  is  silent,  or  to  which  its  provisions  do  not 
apply.  The  92d  Article  of  War,  for  example,  does  not  prescribe  by  whom 
the -oath  shall  be  administered  to  witnesses  before  a  court-martial.  By  the 
custom  of  service  it  is  administered  by  the  judge-advocate.^  So,  too,  in  a 
case  where  its  sentence  is  discretionary,  a  court-martial  may  impose  any 
punishment  that  is  sanctioned  by  the  custom  of  service,  although  (in  the 
cases  of  enlisted  men)  the  same  may  not  be  included  in  the  list  of  the  more 
usual  punishments  contained  in  the  Manual  for  Coarts-martial.' 

Conditions  Essential  to  the  Validity  of  a  Custom  of  Service. — Customs 
of  service  resemble  in  their  origin  and  development  those  portions  of  the 
Common  Law  of  England  which  were  of  similar  derivation,  and  to  be  valid 
must  conform  to  the  same  conditions.  The  terms  custom  and  usage,  as 
used  at  Common  Law,  are  not  synonymous;  the  latter  applying  to  an  act  or 
practice  which,  by  constant,  regular,  and  invariable  repetition,  has  gradually 
acquired  the  force  of  law;  the  former  applies  to  the  legal  sanction  acquired 
by  such  constant  repetition  and  invariable  observance,  that  is,  to  the  custom, 

>  U.  S.  OT.  McDaniell,  7  Pet.,  2,  15;  O'Brien,  87;  De  Hart.  16.5;  Ives,  20,  21;  Winthrop. 
37;  Tytler,  6;  Simmons,  ii^  595,  596;  CMode,  Mil.  Law,  13-15;  Man.  Mil.  Law,  22;  Man. 
for  Courts-martial.  4;  Dig.  J.  A.  Gen.,  27.  Zi). 

'  Dig.  .J.  A   Gen.,  108,  par.  2;  ibid.,  140,  par.  2;  ibid.,  697,  par.  8. 

»  Ilndl,  697,  par.  6. 


ITS  AUTHORITY  AND  SOURCES.  ii 

or  customary  laWy  developed  by  long-continued  adherence  to  a  particular 
practice  or  usage.  The  following  are  the  principal  conditions  to  be  fulfilled 
in  order  to  constitute  a  valid  custom  of  service: 

1.  It  lyiust  be  long  continued.  This  is  the  first  essential  of  a  custom; 
habits  are  not  quickly  acquired,  even  by  individuals;  for  a  particular  usage 
to  become  habitual  in  a  community,  therefore,  a  long  period  of  time  is 
required.  "  If  a  particular  usage  can  be  shown  to  have  commenced,  it  is 
void  as  a  custom.  Of  course  it  must  have  had  a  beginning;  but  if  its  begin- 
ning can  be  discovered,  then  the  individual  who  originated  the  custom  can 
be  ascertained,  and  one  man  will  be  tiie  maker  of  the  law,  which  is  impossi- 
ble. But  if  there  is  uo  evidence  of  a  beginning,  it  will  be  presumed  to  have 
existed  during  the  whole  period  of  legal  record."  ' 

2.  It  must  be  generally  known  and  invariably  observed  by  those  who  are 
alleged  to  lie  subject  to  its  operation.  This  follows  from  the  definition  of  the 
term,  for  that  is  not  a  custom  which  is  casually  or  i-epeatedly  excepted  from, 
and  a  practice  which  is  not  habitual,  or  generally  observed  in  a  community, 
lacks  the  most  essential  characteristic  of  a  custom. 

3.  It  7nust  be  comjynlsory.  In  other  words,  it  must  be  an  invariable  rule 
of  action;  that  is,  it  must  have  the  obligatory  form  of  a  customary  law. 

■4.  It  must  not  be  in  opposition  to  the  terms  of  a  statute.  Statutes,  as 
has  been  seen,  have  the  highest  sanction  of  all  forms  of  the  written  law;  and 
anything  contrary  to  their  tenor  is  void  and  without  obligatory  force  :  a 
custom  opposed  to  a  statute  has  therefore  no  obligatory  effect. 

Extinguishment  of  Custom  by  Non-user. — As  usage  constantly  observed 
for  a  long  period  of  time  constitutes  custom,  it  follows,  by  parity  of  reason- 
ing, that  formal  abandonment  or  long-continued  non-usage  will  operate  to 
destroy  a  particular  custom,  that  is,  to  deprive  it  of  its  obligatory  character.' 

Field  of  Operation. — The  field  of  operation  of  the  unwritten  military  law 
is  very  extensive,  and  its  provisions  are  so  fully  established  and  so  generally 
understood  in  the  military  service  that  it  is  extremely  unlikely  that  it  will 
be  replaced,  at  any  time  in  the  future,  by  statutes  or  regulations;  such  a 
course,  indeed,  would  hardly  seem  to  be  necessary,  since  its  existence  and 
obligatory  force  are  expressly  recognized  aiul  sanctioned  by  the  clause  above 
cited  from  the  8-tth  Article  of  War.    The  body  of  unwritten  military  law  in 

'  3  Blackstone.  pp.  74-77. 

•  The  punisbuient  of  hall  and  chain,  thoiit^h  sanctioned  by  the  usage  of  the  service, 
should,  in  the  opinion  of  the  Judge- Advocate  (Jenerai,  he  imposed  only  in  extreme  cases. 
Its  remission  has  in  general  been  rt^commended  by  him  except  in  cases  of  old  offenders 
or  aggravated  crime,  where  ileemed  serviceable  as  a  means  of  obviating  violence  or  pre- 
venting escape.  This  penalty  has  as  have  also  those  of  shaving  the  head  ami  drumming 
out  of  the  service)  become  rare  in  our  army,  since  the  further  corporal  punishment  of 
branding  or  marking  has  been  expre.ssly  prohibited  by  statute.  (Dg.  J.  A.  Gen.,  697, 
par  8.)  This  example  furnishes  an  illustration  of  the  abandonment  of  a  cu-^tom  of 
service  partly  from  disuse,  or  non-user,  and  partly  because  of  its  inconsistency  with  fha 
terras  of  a  statute. 


1:^ 


MILITARY   LAW. 


force  at  the  time  of  the  adoption  of  the  Federal  Constitution  also  received 
statutorv  sanction  in  the  Act  of  September  29,  ]780,'  which  provided  that 
the  troops  composing  the  then  existing  military  establishment  should  be 
governed  by  the  Rules  and  Articles  of  War  enacted,  prior  to  the  adoption  of 
the  present  Constitution,  by  the  Congress  under  the  Articles  of  Confedera- 
tion. 

It  is  applied  by  courts-martial  in  the  definition  of  certain  military 
offenses,  in  determining  whether  certain  acts  or  omissions  are  punishable, 
as  such,  especially  in  cases  arising  under  the  61st  and  G2d  Articles  of  War, 
and  in  fixing  upon  the  form  of  certain  military  punishments.  The  pro- 
cedure of  courts-martial  is  also  regulated,  to  a  certain  extent,  by  the  custom 
of  service,  and  it  is  appealed  to,  at  times,  as  a  rule  of  interpretation  of  terms 
technical  to  the  military  service.'' 

Usages. — It  has  been  seen  that  mere  practices,  or  usages  of  service, 
although  persisted  in  for  considerable  periods  of  time,  are  not  customs  and 
have  none  of  the  obligatory  force  which  attaches  to  customary  law,  properly 
so  called.  The  fact  that  such  usages  exist,  therefore,  can  never  be  pleaded 
in  justification  of  conduct  otherwise  criminal  or  reprehensible,  nor  relied 
upon,  as  a  complete  defense,  in  a  trial  by  court-martial.  They  may,  how- 
ever, with  the  permission  of  the  court,  be  established  in  evidence,  with  a 
vieAV  to  constitute  a  partial  defense,  to  mitigate  the  severity  of  the  punish- 
ment, or  to  diminish,  somewhat,  the  degree  of  criminality  of  the  offense  set 
forth  in  the  charges  and  specifications.' 

TABULAR   STATEMENT   OF   MILITARY    LAW.* 


Law  appli- 
cable to 
military 
peisoDs. 


Military  Law 
applicable 
at  all  times. 


"Written. 


Martial  Law. 

Military  rule, 
or  the   law 
of  hostile 
occupation. 


1.  Statutes:  Articles  of  war 

and  enactments  of  simi- 
lar character. 

2.  Decisions     of      courts. 

Opinions  of  Attorneys- 
General,  etc. 

3.  Army  regulations. 

4.  Military  orders. 


!1,  Customs  of  service  =  the 
custom  of  war  in  like 
cases.     (84  A.  W.) 

In  general  unwritten.     A  part  of  Interna- 
tional Law,  supplemented  by  the  orders 
and  instructions  of  belligerent  govern- 
ment to  its  military  commanders  in  the 
[       field  ;  together  with  a  few  statutory  pro- 
^      visions  applicable  to  a  state  of  war. 


Administered 
by  courte- 

martial. 


Administered 

by  military 

commissions. 


'  Act  of  September  29,  1789  (1  Stat,  at  Large,  95). 

»  The  definition  of  the  term  "desertion  "  as  used  in  the  47th  Article  and  of  tbe  term 
"mutiny"  as  used  in  the  22d  Article  is  based  upon  customs  of  service. 

»1  Winthrop,  45;  Ives,  21;  U.  S.  vs.  McDaniell,  7  Pet.,  2,  15. 

*  Prepared  by  Captain  Geo.  H.  Boughton,  3d  Cavalry,  Assistant  Professor  of  Law, 
U.  S.  Military  Academy. 


CHAPTER   II. 

MILITAUY   TRIBUNALS. 

courts-martial:  their  origin  and  function. 

Origin  and  History.— The  Court-martial,  as  a  military  tribunal,  ante- 
dates the  standing  army  in  English  history.  As  an  agency  for  the 
maintenance  of  discipline  in  armies,  its  history  can  be  traced  back  to  a  period 
considerably  earlier  than  the  Christian  era;  especially  among  the  Romans, 
the  most  important  and  powerful  of  the  military  nations  of  antiquity,'  from 
whose  system  of  jurisprudence  it  was  liorrowed  by  the  Teutonic  leaders 
during  the  Middle  Ages,  and  adapted  to  the  peculiar  conditions  of  the 
feudal  system.  It  had  become  fully  established  on  the  continent  of  Europe 
at  the  time  of  the  Xorman  Conquest,  and  was  introduced  into  England,  as 
an  incident  of  that  system,  by  William  the  Conqueror  and  his  immediate 
successors,  in  the  latter  part  of  the  eleventh  century. 

The  Constable  and  Marshal ;  the  Constable  s  or  Marshal's  Court ;  the 
Court  of  Chivalry.— Of  the  high  officers  of  William's  court,  there  were  two, 
the  Constable  and  Marshal,  whose  duties  and  functions  were  peculiarly  mili- 
tary. The  constable,  under  the  direction  of  the  king,  was  the  commander 
of  the  royal  armies.'  When  an  occasion  arose  for  the  employment  of  the 
military  forces,  this  officer,  in  addition  to  his  duties  as  commander-in-chief, 
sat  as  a  superior  judge  for  the  trial  of  all  matters  in  litigation  between 
soldiers  and  followers  of  the  army.  In  addition  to  this  duty,  the  Constable's 
Court  had  power  to  try  and  punish  certain  criminal  acts,  subversive  of 
discipline,  which  would  now  be  termed  military  offenses,  and  over  which 
the  common-law  courts,  as  such,  were  at  first  without  jurisdiction.  This 
court  was  composed  of  the  constable,  assisted  by  the  marshal,  by  three 
doctors  of    the  civil   law  (indicating  its  Roman    origin),    and  by  a  clerk, 

•  See  Bruce,  Institutions  of  Militarv  T,aw  (1717). 

-  The  otfice  of  constable  is  said  to  have  been  conferred  upon  the  Bohuns,  Earls  of 
Hereford  and  Essex  From  this  family  it  passed  to  the  Dukes  of  Buckincrhain.  as  heirs 
general,  and  on  the  attainder  of  Edward,  Duke  of  Buckinpham.  for  hierh  treason.*  the 
otfice  reverted  to  the  crown  and,  s'lve  upon  ceremonial  occasions,  has  not  since  been 
conferred  upon  a  subject.  Grose,  Mil.  Antiq..  216.  For  an  account  of  the  rights  and 
privileges  claimed  bv  the  Constable  of  Bourbon,  see  Grose.  Mil.  Ant.,  vol.  ii.  P-  218. 
The  office  of  constable  in  France  was  suppressed  by  Louis  XIII.  in  1627.  Ibid.,  li.  p. 
224. 

*  13  Henry  VHI. 

13 


14:  MILITARY  LAW. 

whose  duties  resembled  those  of  tlie  present  judge-advocate,  in  that  he  was 
required  to  prosecute  all  delinquents  brought  before  the  Constable's  Court 
for  trial.' 

The  Earl  Marshal. — The  Earl  Marshal  was  the  officer  next  in  rank  to  the 
constable/  As  the  duties  of  the  constable  related  to  the  command  of  the 
Army,  those  of  the  marshal,  as  the  name  implies,  resembled  those  now  per- 
formed by  the  adjutant-general.  "When  the  office  of  constable  ceased  to 
exist  his  duties  descended  to  and  were  performed  by  the  earl  marshal,  and 
the  court  of  the  constable  came  to  be  known  as  the  Marshal's  Court  or,  in 
its  modern  form,  as  the  Court-martial.  Aside  from  its  strictly  criminal 
jurisdiction,  it  had  much  to  do  with  the  decision  of  questions  relating  to  fiefs 
and  military  tenures,  and  to  the  performance  of  military  duties  under  them; 
and  this  jurisdiction  continued  to  exist,  and  to  be  exercised,  after  the 
common-law  courts  had  begun  to  exercise  jurisdiction  over  questions 
relating  to  the  holding  of  land  in  feudal  tenures.  Matters  respecting  estates 
in  land,  regarded  merely  as  a  question  of  property,  going  to  the  common- 
law  courts  for  decision,  but  controversies  respecting  rights,  dignities,  and 
successions,  in  which  no  question  of  property  was  involved,  being  decided 
by  the  Marshal's  Court.' 

'  Grose,  Mil.  Ant.,  vol.  ii.  p.  216.  For  otlaer  accounts  of  the  origin  and  jurisdiction 
of  tbis  court  see  Tytler,  22;  Adye,  7;  Manual  Mil.  Law,  7-12;  Winthrop,  46.  See,  also,  a 
paper  on  the  Articles  of  War,  by  Judge-Advocate  General  G.  Norman  Lieber,  U.  S.  A., 
in  the  first  volume  of  the  Journal  of  the  U.  S.  Mil.  Service  Institution. 

'  The  office  of  earl  marshal  was  conferred  by  William  the  Conqueror  upon  Roger  de 
Montgomery  and  William  Fitzosborne.  It  was  held,  later,  for  several  generations,  by 
the  family  of  de  Clare,  Earls  of  Pembroke,  after  which,  upon  a  reversion  to  the  crown,  it 
was  conferred  upon  the  family  of  Thomas  Howard,  Duke  of  Norfolk,  where  it  has  since 
remained.  (Grose,  Mil.  Antiq.,  ii.  224.)  The  earl  marshal  is  now  head  of  the  Heralds' 
College,  and  exercises  a  small  part  of  his  original  jurisdiction  in  respect  to  crests  and 
armorial  bearings. 

2  The  jurisdiction  of  this  court,  according  to  Sir  Matthew  Hale,  was  declared  and 
limited  by  common  law  as  follows:  "First,  negatively;  its  officers  were  not  to  meddle 
with  anything  determinable  by  the  common  law,  and  therefore,  insomuch  as  matter  of 
damages,  and  the  quantity  and  determination  thereof,  is  of  that  cognizance,  the  court  of 
the  constable  and  earl  marshal  could  not,  even  in  such  suits  as  were  proper  for  theii 
authority,  give  damages  against  the  party  convicted  before  them,  and,  at  most,  c  mid 
only  order  reparation  in  point  of  honor.  Neither  could  thev,  as  to  the  ]>oint  of  reparation 
in  honor,  hold  plea  of  any  such  words  or  things  wherein  the  party  was  relievable  by  the 
courts  of  common  law.  Second,  affirmatively  ;  their  jurisdiction  extended  to  matters  of 
arms  and  matters  of  war,  viz..  as  to  matters  of  arms  Cor  hernblry)  the  constable  and 
marshal  had  cognizance,  viz..  touchimi  the  rieht  of  coats  of  armour,  bearings,  crests, 
supporters,  pennants,  etc..  and  also  touching  the  right  of  place  and  pre-erience,  in  cases 
whf-re  either  Acts  of  Parliament  or  the  kin-r's  patent  fbe  being  the  fountain  of  honor) 
had  not  already  determined  it;  for.  in  such  cases,  they  had  no  power  to  alter  it.  These 
things  were  ancientlv  allowed  to  the  jurisdiction  of  the  constable  and  marshal,  a<5  having- 
some  relation  to  military  affairs;  but  so  restrained  that  they  were  only  to  determine  t'  e 
right,  and  give  reparation  to  th^  partv  injured,  in  j)oint  of  honor,  but  not  to  repair  him 
in  damages."     (Hale,  History  of  the  Common  Law,  pp.  36-8S  ) 

"As  to  matters  of  arms,  however,  the  constable  and  marshal  had  a  double  nower  :  (1) 
a  ministerial  power,  as  thev  were  anciently  two  great  ordinary  officers  in  the  king  s  army; 
the ''on stable  being,  in  effect,  the  kimr's  general,  and  the  marshal  being  emydoyed  in 
marsTialing  the  king's  army,  and  keeping  the  list  of  the  officers  and  soldiers  therein  ; 
and  his   certificate  being  the   trial   of  those    who=e  attendance   was  requisite;*  (2)  a 

•  Littleton,  {  108. 


MILITARY  TRIBUNALS.  15 

Before  tlie  ottice  of  marshal  began  to  decliue  in  importance,  the  institu- 
tion of  the  Court-martial,  as  a  tribunal  for  tlie  trial  and  punishment  of 
mil'tary  offenses,  had  become  tirmly  established.  The  place  of  the  marshal 
and  his  assistants  had  been  taken  by  military  otticers  detailed  for  the  pur- 
pose, or  performing  the  duty  by  title  of  office,  and  the  court  had  come  to  be 
convened,  or  appointed,  by  the  crown,  either  directly  by  the  sovereign  in 
person,  or  in  pursuance  of  a  commission,  issued  by  him  for  tliat  purpose,  to 
a  proper  military  commander.' 

Courts-martial:  their  Authority  and  Function. — Military  Law  is  enforced 
by  means  of  certain  tribunals,  created  for  the  purpose,  called  Courts-mar- 
tial, the  origin  and  history  of  which  have  already  been  described.  These 
tribunals  are  created  b/  the  order  of  a  proper  convening  authority,  and  are 
empowered,  by  statute,  to  determine  challenges,  to  try  accusations  against 
military  persons,  to  reach  findings  of  guilt  or  innocence  respecting  the  same, 
and  to  impose  appropriate  sentences.  Their  sentences,  however,  have  in 
themselves  no  legal  validity,  being  in  the  nature  of  recommendations  merely, 
until  they  have  received  the  approval  of  a  military  commander,  designated 
by  law  for  this  purpose,  called  the  reviewing  authority.  With  such  approval 
or  confirmation,  however,  their  sentences  become  ojierative  and  acquire  the 
same  sanction  as  the  sentences  of  civil  courts  having  criminal  jurisdiction, 
and  are  entitled  to  the  same  legal  consideration. 

Courts-martial  Executive  Agencies.' — Courts-martial  are  no  part  of  the 
judiciary  of  the  United  States,  but  simply  instrumentalities  of  the  executive 
power.  They  are  creatures  of  orders  ;  the  power  to  convene  them,  as  well 
as  the  power  to  act  upon  their  proceedings,  being  an  attribute  of  command. 
But,  tliough  transient  and  summary,  their  judgments,  when  rendered  upon 
subjects  within  their  limited  jurisdiction,  are  as  legal  and  valid  as  those  of 
any  other  tribunals,  nor  are  the  same  subject  to  be  appealed  from,  set  aside, 
or  reviewed  bv  the  courts  of  the  United  States  or  of  any  State.' 


Indicial  power,  as,  first,  appeals  of  death  or  murder  committed  beyond  the  sea.  according 
to  the  course  of  the  civil  law  ;  second,  the  rights  of  prisoners  taken  in  war  ;  third,  the 
offenses  and   miscarriages  of   soldiers,  contrary  to   the    laws  and   rules  of  the  army. 
(Adye.  Treatise  on  Courts-martial,  2-6.) 

«  Di-^T'A.Ve^n.',  313.  par.  1;  Swaim  v.«.  V.  S..  165  V.  S  553.  See  Dynes  t'*  Hoover. 
20  Howard.  79;  Ex  ;7,7r/«  Vallandi-ham.  1  Wallace.  243;  ^^  ak-s  r..  \\  hitney.  1 14  1  .  S 
.564-  Fu-itive  Slave  Law  Cases,  1  Blatch.,  635;  Tn  re  Bogart,  2  Sawyer,  402.  409;  Moore 
r.*  Houston.  3  S.  &  K..  197;  E.r  part,  Dunbar  14  Mass..  392;  Bfown  r,v.  \\adsworth.  15 
Verm  170-  People  vs.  Van  .Mien.  55  \.  Y. .  31 ;  Perault  vs.  Han.l,  10  Hun,  222;  hx  parte 
Brisrht  1  F'ah  148  154;  Moore  r.v.  Bastard.  4  Taunt.,  67:  6  Oi^ins.  Att.-C.en..  41o.  4-5. 
"No  acts  of  militarv  officers  or  tribunals,  within  the  scope  of  their  jurisdiction,  can  be 
revised  set  aside  or  punished,  civillv  or  criminally,  by  a  court  of  common  law  I  yler 
r.o  Pomerov  S  Allen  484  Where  a  court-martial  has  jurisdiction.  "  its  proceedings  can- 
not be  collaterallv  impeached  for  anv  mere  error  or  irregularity  committed  witbin  the 
sphere  of  its  authoritv.  Its  iudgments,  when  approved  as  required,  rest  on  the  same 
basis  and  are  surrounded  bv  the  same  considerations  which  give  conclusiveness  to  the 
judgments  of  other  legal  tribunals,  including  as  well  the  lowest  as  the  highest,  under 
like  circumstances."     Ex  parte  Reed,  10  Otto.  13. 


X6  MILITARY  LAW. 

Military  Tribunals  Courts  of  Honor. — Although,  as  will  presently  be 
seen,  the  jurisdiction  conferred  upon  courts-martial  by  the  Articles  of  War 
is  criminal  in  character,  it  should  also  be  borne  in  mind  that  they  are  in  a 
special  sense  courts  of  honor,  whose  object  is  the  maintenance  of  a  high 
standard  of  discipline  and  honor  in  the  Army,  and  which,  in  the  exercise  of 
this  jurisdiction,  try  many  accusations  based  upon  acts  entirely  unknown  to 
the  civil  courts  as  criminal  offenses.  Only  courts  composed  of  military 
officers  can  have  that  knowledge  of  the  standard  of  discipline  and  honor  in 
the  Army  which  would  enable  them  to  weigh  correctly  acts  impairing  it,  and 
courts-martial,  in  maintaining  this  standard,  may  properly  be  said  to  be 
courts  of  honor.' 

Classification. — Courts-martial  are  classified,  in  accordance  with  their 
jurisdiction,  into  General  and  Inferior  Courts-martial;  the  latter  term 
including  the  Regimental  Court,  the  Garrison  Court-martial,  and  the  Sum- 
mary Court.  The  General  Court-martial  is  the  liighest  tribunal  known  to 
military  law,  and  has  the  most  comprehensive  jurisdiction  in  respect  to 
both  persons  and  cases.  It  may  try  any  person  subject  to  military  law  for 
any  otfense  over  which  such  tribunals  are  given  statutory  jurisdiction.  The 
jurisdiction  of  the  minor  courts  is  restricted  as  to  the  persons  and  cases 
triable  by  them,  and  as  to  the  punishments  which  they  may  impose  upon 
conviction. 

How  Created  and  Terminated. — Courts-martial  differ  from  civil. tribunals 
having  criminal  jurisdiction,  not  only  in  the  nature  and  extent  of  their 
jurisdiction,  as  will  presently  be  seen,  but  in  the  manner  of  their  creation. 
Civil  courts,  whether  of  general  or  special  jurisdiction,  are  created  by 
statutes,  which  define  their  composition,  endow  them  with  appropriate 
jurisdiction,  and  determine  the  times  when,  and  the  place  or  places  where 
their  sessions  shall  be  held.  Courts-martial,  on  the  other  hand,  though 
authorized  by  statute,  are  created,  in  every  case,  by  proper  military  orders, 
issued  by  commanding  officers  having  authority,  under  the  Articles  of  War, 
to  call  them  into  being.  When  the  cases  referred  to  them  for  trial  have 
been  completed,  or,  in  certain  contingencies,  at  the  discretion  of  the  appoint- 
ing power,  they  are  dissolved  by  the  authority  that  created  them  and  simply 
cease  to  exist  as  military  tribunals.* 

MILITARY   TRIBUNALS:     TABULAR   STATEMENT. 

fl.  General  courts-raartial  ;    complete  jurisdiction  (72,  73,  74 
A.  W.     Sec.  1326,  R.  S.) 
2.  The  Summary  Court.     (81  A.  W.) 
...  ..J  „.^  ..^..^.„.       I  3    ^j^g  Regimental  Court.     (81  A.  W.) 

1^  4.  The  Garrison  Court.     (82  A.  W.) 

Courts  of  Inquiry.  Power  (  1.  Courts  of  Inquiry.     (11.5  A.  W.) 
to  investigate  merely.     \  2.  The  Regimental  Court  for  doing  justice.     (30  A.  W.) 

'  Judge-Advocate  General 

^Dig.  J.  A.  Gen.,  317,  par.  13,  14;  320,  par.  30;  88,  par.  5. 


CHAPTER   III. 

THE  CONSTITUTION   OF  COURTS-MARTIAL. 

THE    GENERAL   COURT-MARTIAL. 

Power  to  Convene. — Authority  to  convene  general  courts-martial  is  con- 
ferred by  the  7'Zd  Article  of  War  upon  "  any  general  officer  commanding  an 
army,  a  territorial  division  or  department,  or  colonel  commanding  a  separate 
department."  Under  the  authority  thus  conferred  general  courts-martial 
may  be  convened  "  whenever  necessary  "  by  the  following  persons: 

1.  By  the  President  of  the  United  States,  as  the  constitutional  com- 
mander-in-chief. This  he  may  do  not  only  in  the  case  expressly  stated  in 
the  Article  "  when  any  such  commander  is  the  accuser  or  prosecutor  of  any 
officer  under  his  command,"  but  at  his  discretion  and  as  an  incident  of  hia 
authority  as  commander-in-chief.' 

2.  Where  the  convening  officer  is  accuser  or  prosecutor.  The  President, 
in  addition  to  the  power  above  described,  is  expressly  authorized  by  this 
Article  to  convene  general  courts-martial  when  the  usual  and  proper  conven- 
ing authority  "  is  the  accuser  or  prosecutor  of  any  officer  under  his  com- 
mand."    The  reason  for  this  exception  is  obvious.     An  officer  standing 

*  "  A  military  officer  cannot  be  invested  with  greater  authority  by  Congress  than  the 
commander-in-chief,  and  a  power  of  command  devolved,  by  statute,  on  an  officer  of  the 
Army  or  Navy  is  necessarily  shared  by  the  President.  The  power  to  command  depends 
upon  discipline,  and  discipline  depends  upon  the  power  to  jiunish;  and  the  power  to 
punish  can  only  be  exercised,  in  time  of  peace,  through  the  medium  of  a  military 
tribunal.  Since  the  earliest  legislation  of  our  Government  it  has  undoubtedly  been 
understood  and  intendeil  that  whatever  powers  were  granted  to  general  officers  were,  at 
the  same  time,  granted  and  intended  to  be  .shared  by  the  President,"  "  whose  name  is  under- 
stood as  written  in  every  statute  which  confers  upon  a  military  officer  militarv  authoritv." 
Swaim  vs.  U.  S..  16")  U.  S..  .553;  ihid.,2S  Ct.  of  Cls.,  178,  331,  334;  Runkle\-s.  U.  S..'l9 
ihid.,  396;  Dig.  J.  A.  (Jen.,  81,  par.  1.  A  convening  of  a  general  court-martial  nominally 
by  the  Secretary  of  War  is  in  law  a  convening  by  tlie  President,  and  therefore  as  legal  as 
if  the  President  himsolf  liad  signed  the  order.     (Ibid.,  60(),  par.  3.) 

The  auttiority  of  the  President  as  communder-in-chief  to  institute  general  courts- 
jnartial  has  been  in  fact  exercised  from  time  to  time,  from  an  early  period,  in  a  series  of 
cases  commencing  with  those  of  Brigadier-deneral  IIull,  Major-General  Wilkinson,  and 
Major-Generai  Gaines,  tried  in  1813-1816,  and  including  that  of  Brevet  Major-(ieneral 
Twigofs,  tried  in  1858.  His  authority  in  this  particular  has  been  in  substance  affirmed  by 
the  .Juiliciary  Committee  of  the  Senate,  in  Report  N'.i.  868.  dated  March  3,  1879,  Forty- 
fifth  Congress,  third  session.  (A  single  nif>inb('r '^f  the  committee  apparently  dissented, 
in  a  subsequent  report  of  April  7,  1879,  Mis  Doc.  No.  31,  Forty-sixth  Congress,  first 
session.)     Ibid.,  606,  par.  1.  note  1. 

17 


18  MILITARY  LA  W. 

toward  the  accnsed  in  the  relation  of  an  accuser  or  prosecutor  is  thereby 
disabled  from  acting  with  the  impartiality  which  it  is  the  purpose  of  the  law 
to  secure  in  all  matters  respecting  the  procedure  of  courts-martial. 

The  question  whether  a  particular  convening  officer  is  to  be  regarded  as 
having  been  the  "  accuser  or  prosecutor  "  of  the  accused  in  the  sense  of  this 
Article  is  mainly  to  be  determined  by  his  animus  in  the  matter.  If,  when 
the  facts  of  the  alleged  offense  are  communicated  to  him,  he  determines 
that  the  same  constitute  a  sufficient  and  proper  ground  for  a  trial,  and 
thereupon  directs  a  suitable  officer,  as  an  officer  of  his  stall",  or  the  command- 
ing officer  of  the  regiment  or  company  of  the  accused,  to  prepare  or  prefer 
the  charges,  he  acts  simply  in  the  due  performance  of  an  official  duty  and 
not  as  "  accuser  or  prosecutor."  '  Nor  is  his  action  any  the  less  official  if, 
in  the  desire  to  have  the  proceedings  regular  and  effectual,  he  himself  directs 
as  to  the  form  of  the  cliarges,  or,  after  the  same  are  prepared,  revises  them 
so  that  they  shall  sufficiently  set  forth  the  alleged  offenses.  Much  less  is  he 
to  be  deemed  an  "  accuser  or  prosecutor  "  where  he  causes  the  charges  to 
be  preferred,  and  proceeds  to  convene  the  court,  by  the  direction  of  the 
Secretary  of  War  or  a  competent  military  superior. 

On  the  other  hand,  where  he  himself  initiates  the  charge  out  of  a 
hostile  animus  toward  the  accused  or  a  personal  interest  adverse  to  him,  or 
from  a  similar  motive  adopts  and  makes  his  own  a  charge  initiated  by 
another,  he  is  to  be  deemed  an  "  accuser  or  prosecutor  "  within  the  Article. 
Xor  is  he  the  less  so  where,  though  he  has  no  personal  feeling  or  interest  in 
the  case,  he  has  become  possessed  with  the  conviction  that  the  accused  is 
guilty  and  deserves  punishment  and,  in  this  conviction,  initiates,  or 
assumes  as  his  own,  the  charge  or  the  prosecution.  For  in  this  case,  equally 
as  in  the  former,  he  is  unfit  to  be  a.  judge  upon  the  merits  of  the  case:  in 
the  one  instance  he  is  too  much  prejudiced  to  be  qualified  to  do  justice;  in 
the  other  he  has  condemned  the  accused  beforehand.' 

'  Compare  late  opinion,  to  a  somewhat  similar  effect,  of  the  Attorney-General  of 
August  1,  1878  (16  Opins.,  106),  in  which  it  is  also  held  that  where  the  record  of  the  trial 
fails  to  indicate  that  the  conrenin^^  officer  was  the  "accuser  or  prosecutor"  of  the 
accused,  the  latter,  in  applyinjfj  to  the  Secretary  of  War  to  have  the  proceedings  pro- 
nounced invalid  on  this  ground,  may  establish  the  fact  by  the  production  of  affidavits 
setting  forth  the  circu'nstances  of  the  case  and  the  action  of  the  commander.  Dig.  J.  A. 
Cfen.,  83,  par.  7,  note  1. 

'  l)ig.  .].  A.  Gen.,  82,  par.  7.  The  objection  that  the  convening  commander  was  the 
"accuser  "  or  "  prosecutor"  of  the  accused,  being  one  going  to  the  legal  constitution  of 
the  court,  may  be  raised  before  the  court  at  any  stage  of  its  pro(;eedings.  Or  it  may  be 
taken  to  the  reviewing  officer  with  a  view  to  his  disapproving  the  proceedings,  or  may 
be  made  to  the  President,  after  the  approval  and  execution  of  the  sentence,  with  a  view 
to  having  the  same  declared  invalid  or  to  the  ol)taiiiing  of  other  ap])ropriate  relief. 
Regularly,  however,  the  objection,  if  known  or  believed  to  exist,  should  be  taken  at  or 
before  the  arraignment.  If  the  objection  is  not  admitted  by  the  prosecution  to  exist, 
the  accused  is  entitled  to  prove  it  like  any  other  issue.     Dig.  J.  A.  Gen.,  84,  par.  8. 

The  provision  of  this  Article  (and  of  Art.  73),  that,  when  the  convening  commander  is 
"  accuser  or  prosecutor,"  the  court  shall  be  convened  by  the  President  or  "  next  higher 
commander,"  being  expressly  restricted  to  (/eiieral  courts,  has  of  course  no  application  to 
regimental  or  garrison  courts.     The  same  principle,  however,  will  properly  be  applied  to 


•   THE  CONSTITUTION   OF  LOili'l l<  MARTIAL.  11> 

The  72d  Article,  in  enij)Oweriug  the  commanders  above  named  to  consti- 
tute the  superior  courts-martial,  makes  them  the  judges,  in  general,  of  the 
expediency  Df  ordering  such  courts  in  particular  instances.  Except  where 
specially  authorized  to  do  so  by  law  or  regulation,  an  officer  or  soldier  cannot 
demand  a  court-martial  in  his  own  case.'  Where  a  commander,  emj)owered 
by  this  Article  to  convene  a  general  court-martial,  declines,  in  the  exerci.se 
of  his  discretion,  to  approve  charges  submitted  to  him  by  an  mferior  and  to 
order  a  court  thereon,  his  decision  should,  in  general,  be  regarded  as  final.' 

Nature  of  the  Avthority. — The  authority  to  order  a  court  lander  this 
Article  is  an  attribute  of  command.  Thus  a  department  commander 
detached  and  absent  from  his  command  for  any  considerable  period,  by  reason 
of  having  received  a  leave  of  absence  (whether  of  a  formal  or  an  informal  char- 
jicter)  or  having  been  placed  upon  a  distinct  and  separate  duty  (as  that  of 
a  member  of  a  court  or  board  convened  outside  his  department,  for  example), 
is  held  to  be  incompetent,  during  such  absence,  to  order  a  general  court- 
martial,  as  department  commander,  even  though  no  other  officer  has  been 
iissigned  or  has  succeeded  to  the  command  of  the  department.' 

Nor  can  a  department  commander  thus  absent  exercise  such  authority 
through  a  staff  officer  or  other  subordinate,  or  delegate  the  same  to  a  subordi- 
nate to  be  exercised  by  him:  the  authority  must  be  exercised  in  person,  by 
the  proper  commander,  and  is  not,  nor  can  it  properly  be  made,  the  subject 
of  delegation.* 

3.  By  certain  military  commanders.  The  72d  Article  of  War  also  con- 
fers the  power  to  convene  general  courts- martial  upon  "  any  general  officer 
commanding  an  army,  a  territorial  division  or  a  department,  or  colonel  com- 
manding a  separate  department."  The  term  "general  commanding  an 
army  "  relates  not  only  to  the  commander  of  an  army,  properly  so  called, — 
that  is,  of  the  field  organization  composed  of  troops  of  all  arms  of  the  service, 
arranged  in  divisions  and  brigades, — but  includes  as  well  tlie  major-general, 
or  other  officer,  assigned  by  the  President  to  commaiul  of  the  Army  of  the 
United  States.*    The  other  officers  named  in  the  Article  are  those  entrusted 


proceedings  before  tliese  courts,  if  it  can  be  done  without  serious  embarrassment  to  the 
service.     Ibid.,  jmr.  9. 

'  1%.  J.  A.  (Jen.,  81,  par.  2. 

'  Ilnd.,  par.  3. 

'  Ibid.,  82,  par.  5. 

*  Ibid.  Nor,  wliere  a  freneral  court-martial  duly  convened  by  a  department  commander 
has,  at  a  time  when  the  coiiiinander  is  thus  absent  from  his  command,  been  reduced,  by  an 
incident  of  the  service,  below  five  members,  can  another  member  legally  l)e  detailed  upon 
the  court  l)y  the  assistant  adjutant-general,  or  otiier  subordinate  otficer  remaining  in 
charge  of  the  headquarters;  since  such  a  detail  would  be  an  exercise  of  a  portion  of  the 
authority  vested,  by  the  Article,  in  the  commander,  and  which  can  in  no  part  be  delegated. 
Ibid  ,  82,  par   5. 

*  The  command  exercised  by  the  commanding  general  of  the  Army,  not  having  been 
made  the  subject  of  statutory  regulation,  is  determined  by  the  order  of  assignment  It 
has  been  habitually  composed  of  the  aggregate  of  the  several  territorial  commands  that 
have  been  or  may  be  created  by  the  President. 

The  Act  of  August  5,  1882,  (23  Stat,  at   Large,  238,)  also  authorizes  the  President  to 


20  MIJJTAUY  LAW. 

with  the  commaml  of  the  departmental  orguuizations  into  which  the  territory 
of  the  United  States  is  liabitually  divided  in  time  of  i)eace,'  though  their 
power  to  convene  general  courts-martial  is  not  restricted  by  that  fact,  but 
may  be  exercised  "  whenever  necessary,"  in  time  of  peace  as  Avell  as  in  time 
of  war. 

Power  to  Convene  Courts-martial  in  Time  of  War. — It  will  be  observed 
that  the  7'2d  Article  of  War  is  not  restricted  in  its  operation  to  a  time  of 
peace,  but  is  equally  applicable  to  a  state  of  peace  or  war.  Isov  is  it 
restricted  to  the  territory  of  the  United  States,  but  may  have  extra-terri- 
torial operation,  and  confers  power  upon  the  othcers  named  to  convene 
courts-martial  wherever  the  forces  of  the  United  States  may  lawfully  happen 
to  be;  and  courts  so  convened  are  legal  tribunals  even  if  convened  in  the 
enemy's  country  and  beyond  the  territorial  jurisdiction  of  the  United  States.'' 

In  time  of  war,  however,  two  classes  of  persons  are  given  authority  by 
the  73d  Article  of  War  to  convene  general  courts-martial — commanders  of 

direct  the  commanding  general  of  the  Army,  or  the  chief  of  any  military  bureau  of  the 
War  Department,  to  perform  the  duties  of  Secretary  of  War  in  the  case  contemplated  by 
Section  179  of  the  Revised  Statutes. 

The  general  commanding  the  Army,  in  the  exercise  of  his  command,  which  is  created 
by  executive  order  and  is  composed  of  the  aggregate  of  the  geographical  or  territorial 
commands  into  which  the  territory  of  the  United  States  is  divided,  has  power  under  the 
72d  Article  to  convene  general  courts-martial  and,  by  his  approval  or  confirmation,  to 
make  their  sentences  effective.  In  practice  courts-martial  for  tlie  trial  of  military  persons 
who  do  not  form  part  of  the  departmental  commands  above  described  are  convened  and 
their  sentences  are  carried  into  effect  by  this  officer. 

The  Army  Regulations  of  1895  contain  the  following  provisions  respecting  the  duties 
of  this  officer: 

The  military  establishment  is  under  the  orders  of  the  commanding  general  of  the 
Army  in  that  which  pertains  to  its  discipline  and  military  control.  The  fiscal  affairs  of 
the  Army  are  conducted  by  the  Secretary  of  War,  thnnigh  the  several  staff  departments. 
(Par.  187,  A.  R..  1895.) 

All  orders  and  instructions  from  the  President  or  Secretary  of  War  relating  to  military 
operations  or  affecting  the  military  control  and  discipline  of  the  Army  will  be  promulgated 
through  the  commanding  general.     (Par.  188,  A    R.,  1895.) 

Paragraph  189  of  the  Army  Regulations  of  1895  contains  the  provision  that  in  time 
of  peace  army  corps,  divisions,  and  brigades  will  not  be  formed  except  for  purposes  of 
instruction.  Section  9  of  the  Act  of  July  17,  1862,  (12  Stat.  L.,  594,)  authorized  the 
President  to  establish  and  organize  army  corps  according  to  his  discretion.  Section  10  of 
the  same  Act  provided  for  the  staff  of  an  army  corps.  Such  legislation  was  not  necessary, 
however,  the  organization  of  separate  armies,  army  corps,  grand  divisions,  wings, 
reserves,  and  the  like,  in  time  of  war  being  a  matter  within  the  discretion  of  the 
President  as  the  commander-in-chief.  For  regulations  respecting  the  organization  of 
armies  in  the  field  in  time  of  war,  see  the  volume  entitled  "  Troops  in  Campaign." 

'  In  time  of  peace  our  Army  has  been  habitually  distributed  into  geographical 
commands,  styled,  respectively,  military  divisions,  departments,  and  districts  —  the 
districts,  as  organized  prior  to  1815,  corresponding  to  the  commands  now  designated  as 
departments.  These  divisions  and  departments  can  be  established  only  by  the  President; 
but,  within  their  respective  departments,  commanding  generals  have  from  time  to  time 
grouped  adjacent  posts  into  temporary  commands,  which  are  now  known  as  districts. 

Military  divisions,  each  embracing  two  or  more  departments,  have  obtained  from 
May  17.  1815,  to  June  1,  1821;  from  May  19,  1837,  to  July  12,  1842;  from  April  20,  1844. 
to  October  31,  1853;  from  July  25  to  August  17.  1861;  and  Irom  October  13,  1863,  to  July 
2.  1891.  Department  organizations  have  been  continuous  since  1815.  (Scott  Dig.,  p. 
244.) 

»  U.  S.  vs.  Anderson,  9  Wall.,  56;  The  Protector,  12  Wall.,  700;  Georgia  vs.  Stanton. 
6  Wall.,  50;  Luther  vs.  Borden,  7  How.,  1;  Kennett  vs.  Chambers,  14  How.,  38. 


THE  COyS'nTLTIO^  OF   COURTS-MARTIAL.  21 

divisions  and  conimunders  of  separate  brigades.  This  provisioa  applies  to 
the  tactical  organization  of  armies  in  the  field,'  as  distinguished  from  the 
geographical  organization  of  military  divisions  and  departments  into  which 
the  territory  of  the  United  States  is  habitually  divided  in  time  of  peace. 
The  comnumder  of  an  army  in  the  field  in  time  of  war  derives  liis  authority 
to  convene  courts-martial  from  the  72d  Article;  the  commander  of  the 
principal  unit  of  command  in  an  army  in  the  field — the  division — and  the 
commander  of  the  exceptional  field  organization — the  separate  brigade — 
derive  their  power  to  constitute  general  courts-martial  from  the  73d  Article, 
which  is  restricted  in  its  operation  to  a  state  of  war.  This  Article  makes 
provision  for  the  contingency  of  the  convening  officer  being  the  accuser  or 
prosecutor  by  the  requirement  that,  in  such  case,  *'  the  court  shall  be 
appointed  by  the  next  higher  commander." 

Separate  Brigades. — To  constitute  a  particular  command  a  separate 
brigade  within  tlie  meaning  of  this  Article,  the  organization  must  not  exist 
as  a  component  part  of  a  division;  to  authorize  its  commander  to  convene  a 
general  court-martial  it  must  be  detached  from,  or  not  connected  with,  any 
division,  but  must  be  operating  as  a  distinct  command.^ 


1  Section  11 14  of  the  Revised  Statutes  contains  the  requirement  that  "  in  the  ordinary 
arranj,'eraeiit  of  the  Army  two  re.^iments  of  infantry  or  of  cavalry  shall  constitute  a 
brigade  and  shall  be  the  command  of  a  brigadier-general,  and  two  brigades  shall 
constitute  a  division  and  shall  be  the  command  of  a  maj  r-general;  but  it  shall  le  in 
the  discretion  of  tlie  comman<iing  general  to  vary  this  disjiosition  whenever  lie  may  deem 
it  proper  to  do  so."  Paragraph  189  of  the  Army  Regulations  of  1^95  provides  that  "  in 
time  of  j)eace  army  corps,  divisions,  or  brigades  will  not  be  formed  except  for  purposes 
of  instruction." 

»  Dig.  .J.  A.  Gen.,  85,  par.  1.  In  accordance  witli  the  terms  of  Section  1114  of  the 
Revised  Statutes  a  division  is  an  organized  command  consisting  of  at  least  two  brigades, 
and  a  brigade  is  a  similarlv  organized  command  consisting  of  at  least  two  regiments  of 
infantry  or  cavalry.  {Ibid'.)  (ieneral  Orders  251  A.  G.  O.  of  1^64  contained  the  require- 
ment tliat  "  where  a  post  or  district  command  is  ccmiposed  of  mixed  troops,  equivalent  to 
a  brigade,  the  commanding  otlicer  of  the  dei)artment  or  Army  will  designate  it  in  orders 
as  a  separate  brigade,  and  a  copy  of  such  order  will  accompany  the  proceedings  of  any 
general  court-martial  convened  by  such  brigade  commander.  Without  such  authority, 
commanders  of  posts  and  districts  having  no  brigade  organization  will  not  convene 
general  courts-martial."  Under  this  order,  which  was  a]ii)lied  mainly  to  the  commands 
designated  in  the  late  war  as  "districts,"  it  was  lield  l)y  the  Jiidge-Advociite  General  as 
follows:  That  the  fact  that  a  district  command  was  composed  not  of  regiments  but  of 
detachments  merely  (which,  however,  in  the  number  of  the  troops,  were  equal  to  or 
exceeded  two  regiments)did  not  preclude  its  being  designated  as  a  "  separate  brigade  "and 
that  when  so  designated  its  commander  liad  the  same  authority  to  convene  general  courts- 
martial  as  he  would  have  if  the  command  had  tlie  regular  statutory  brigade  organization: 
that  though  a  district  ccunmand  embraced  a  force  considerably  greater  than  that  of  n 
brigade  as  commonly  constituted,  yet  if  not  designated  l)y  the  proper  authority  as  a 
"  separate  brigade  ""  its  cominand'er  would  be  without  authority  to  convene  general 
courts-martial,  unless  indeed  liis  command  constituted  a  separate  "army  "  in  the  sense 
of  the  72d  Article;  that  it  was  not  absolutely  necessary,  to  give  validity  to  the  proceed- 
ings or  .sentence  of  a  general  court-martial  convened  by  the  commander  of  a  separate 
brigade,  that  the  command  should  be  described  as  a  separate  brigade  in  the  caption  or 
superscripti(m  of  tlie  order  convening  the  court  and  prefixed  to  the  record,  or  even  that  a 
copy  of  the  order  designating  the  command  as  a  separate  brigade  should  accompany  the 
proceedings.  As  to  the  latter  feature,  (ieneral  Orders  No.  251  of  1864  is  viewed  a.s 
directory  merely.  And  though  not  to  accompany  the  record  with  a  copy  of  the  order 
thus  constituting  the  command  would  be  a  serious  irregularity,  as  would  be  also— though 


22  MILITARY  LAW. 

"  Time  of  War,"  How  Determined. — The  dates  wheu  a  state  of  war  begins 
and  terminates  are  questions  of  fact,  to  be  determined  by  Congress  and  the 
Executive,  the  political  departments  of  the  Government  charged,  in  the 
Constitution,  witli  the  power  to  declare  war  and  to  conduct  military  opera- 
tions. The  dates  so  determined  are  binding  upon  the  judiciary,  and  serve  to 
fix  the  period  within  which,  under  the  73d  Article  of  War,  the  commanders 
of  divisions  and  separate  brigades  may  constitute  general  courts-martial.' 

The  Superintendent  of  the  Military  Academy. — Section  1326  of  the 
Revised  Statutes  confers  power  upon  the  Superintendent  of  the  Military 
Academy  to  convene  general  courts-martial  for  the  trial  of  cadets.  This 
officer  is  also  empowered  to  execute  tlie  sentences  of  such  courts,  except  the 
sentences  of  suspension  and  dismission,  subject  to  the  same  limitations  and 
conditions  now  existing  as  to  other  general  courts-martial." 

THE    INFERIOR    COURTS-MARTIAL. 

The  Regimental  Court-martial. — The  81st  Article  of  War  provides  that 
"  every  officer  commanding  a  regiment  or  corps  shall,  subject  to  the  pro- 
visions of  Article  80,  be  competent  to  appoint,  for  his  own  regiment  or  corps, 
courts  martial,  consisting  of  three  officers,  to  try  offenses  not  capital."     In 

a  less  serious  one — the  omission  of  the  proper  formal  description  of  the  command  from 
the  convening  order,  yet  if  the  command  had  actually  been  duly  designated,  and  in  fact 
was,  a  separate  brigade,  and  this  fact  existed  of  record  and  could  be  verified  from  the 
official  records  of  the  department  or  Army,  the  omission  of  either  of  these  particulars, 
tiiough  a  culpable  and  embarrassing  neglect  on  the  part  of  the  court  or  judge  advocate, 
would  not,  per  se,  invalidate  the  pr()ceedings  or  sentence.     Ibid.,  par.  'S. 

'  Dig.  J.  A.  Gen.,  par.  4;  ihid.,  748.  . 

'  .\s  the  cadets  at  the  Military  Academy  are  not  commissioned  officers,  they  are,  under 
the  82d  .\rticle,  suljject  to  trial  l)y  garrison  courts-martial.  (7  Opin.  Att.-Gen.,  3"23.)  The 
Academic  Regulations  also  confer  upon  the  Superintendent  a  limited  power  to  punish, 
summarily,  certain  offenses  committed  by  cadets  in  violation  thereof.  The  offenses  so 
made  punisliable  are  defined  in  tiie  regulations  and  orders  of  the  Academy,  and  the  pun- 
ishments wiiich  may  be  imposed  are  there  specified.  The  undergraduate  cadets  are 
not  commissioned  officers,  and  are,  theref(ire,  not  competent  to  sit  on  a  court-martial,  and 
are  triable  by  a  regimental  or  garrison  court-martial.  (7  Opin.  Att.-Gen.,  323.)  In  their 
internal  academic  organization  as  officers,  non-commissioned  officers,  and  privates,  they 
are  not  subject  to  the  Articles  of  War  as  resppcts  their  relation  to  one  another,  but  only 
as  respects  their  relation  to  commissioned  officers  of  the  Army,  on  duty  as  such  at  the 
Academy.     (Ibid.) 

Cadets  are  amenable  to  trial  by  court-martial  for  violations  of  the  regulations  of  the 
Academy,  as  "conduct  to  the  i)rejudice  of  good  order  and  military  discipline."  *  (Dig. 
J.  A.  Gen.,  210,  par.  8  ) 

Tlie  Superintendent  of  the  Mditary  Acadcnny  can  have  no  power,  by  virtue  of  a  regu- 
lation of  the  Academy,  to  try  and  ])unisli  a  cadet  for  a  military  offense  for  whicli,  under 
the  Articles  of  War,  he  is  amenable  to  trial  by  court-martial.  A  regulation  assuming  to 
confer  upon  him  such  power  would  be  in  contravention  of  law  and  inoperative.  Other- 
wise of  a  regulation  which  merely  authorized  a  measure  of  discipline.  So  where  a 
cadet,  on  arraignment  lor  a  military  offense,  pleaded  in  bar  tbat  he  had  already,  for  the 
same  offense,  l)een  punished  by  reduction  from  cadet  offi'  er  to  cadet  private,  under  par. 
107,  Acad -my  Regulations,  /lefd  that,  regarding  such  reduction  as  a  form  of  school  disci- 
pline only,  the  plea  was  properly  overruled  by  the  court,      [bid.,  par.  11. 

*  In  this  connpftion  may  he  nnte.i  tlw  opinion  of  (he  Solicitor-General  (l.";  Opius.,  f).34)  that  except 
for  t)ie  offense  of  hazintr,  specially  riiadf  punishable  by  the  Act  of  June  23,  1874.  cadets  of  the  Naval 
Acaiieiny  are  not  subject  to  triid  l/i/  lom  l-nuiitial. 


THK  COySTITUriON  OF  COURTS  MARTIAL.  23 

addition  to  the  commanders  of  regiments,  properly  so  called,  the  chiefs  of 
Buch  of  the  Staff  Corps  as  include  enlisted  men  in  their  personnel  may  con- 
vene these  courts  at  posts  or  places  occupied  by  troops  under  their  direct 
military  control  and  command.' 

The  strictly  criminal  jurisdiction  of  this  tribunal  having  been  transferred 
to  the  Summary  Court  by  a  recent  eiiactment  of  Congress,  its  functions  are 
now  largely  restricted  to  cases,  arising  under  the  30th  Article  of  War,  which 
involve  the  redress  of  grievances  alleged  by  enlisted  men  to  have  arisen  in 
the  administration  of  the  conmiands  to  which  they  belong.  It  can  now  be 
lawfully  convened  for  the  trial  of  a  soldier  only  in  a  case,  properly  referable 
to  a  Summary  Court,  in  which  the  party  defendant,  being  a  non-commis- 
sioned officer,  formally  requests  that  the  charges  against  him  be  passed  upon 
by  a  regimental  court-martial,  or  when  such  trial  has  been  authorized  by 
the  oflicer  competent  to  the  trial  of  the  accused  by  a  general  court-martial.' 

The  Garrison  Court-martial. — While  the  Garrison  Court-martial  has  the 
same  jurisdiction  in  respect  to  offenses  as  the  other  inferior  courts  recognized 
by  the  Articles  of  War,  its  jurisdiction  as  to  persons  is  considerably  more 
extensive,  and  it  may  try  enlisted  men  of  any  corps  or  arm  of  the  service 
who  are  attached  to,  or  form  a  part  of,  the  command  of  the  officer  who  has 
power  to  convene  it.  Tlie  Kegimental  Court  already  described  relates 
strictly  to  organizations.  It  is  thus  seen  to  be  independent  of  place  or 
locality,  and  may  be  convened  at  a  military  post  or  in  the  field,  on  the 
march,  or  in  bivouac — wherever,  indeed,  the  organization  to  which  it  per- 
tains may  happen  to  be.     The  Garrison  Court,  on  the  other  hand,  is  fixed 


'  Held  that  the  Chief  of  Engineers  was  authorized  to  order  a  court  under  tliis  Article 
for  the  trial  of  soldiers  of  the  engineer  battalion  ;  the  same,  in  connection  with  the 
engineer  officers  of  the  Army,  being  deemed,  in  view  of  Sees.  1094,  1151,  1154.  eic,  of 
the  Revised  Statutes,  to  constitute  a  "corps'  in  the  sense  of  the  Article.  So  held  that 
the  Chief  of  Ordnance  vvus  authorized  to  convene  such  a  court  for  tlie  trial  of  the  enlisted 
men  authorized  by  Sec.  1162.  Rev.  Sts.,  to  be  enlisted  by  him  ;  the  same  being  diemed 
to  constitute  with  the  ordnance  officers  such  a  separate  and  distinct  branih  of  the  mili- 
tary establishment  as  to  come  within  tlie  general  designation  of  "  cori)s"  employed  in 
the  Article.  So  held  that  the  Chief  Signal  Officer,  \inder  the  provisions  of  the  Acts  of 
July  24,  1876,  .June  20,  1878,  etc..  relating  to  his  branch  of  the  service,  whs  authorized 
to  order  courts-martial,  as  commanding  a  "corps"  in  the  sense  of  this  Article.  Dig.  J. 
A.  Gen.,  92,  par.  1. 

'The  Kegimental  Court  is  the  oldest,  in  respect  to  its  creation,  of  the  several  inferior 
courts  known  to  our  military  practice.  It  originally  consisted  of  all  the  commissioned 
otficers  of  the  legimont,  anil  had  in  early  times  a  more  comprehensive  jurisdiction  than 
is  now  assigned  to  it  by  law.  In  the  British  service  its  membership  was  reduced  to  live 
about  the  mitldle  of  the  last  century,  and  in  our  own  service  was  li.xed  at  three  by  the 
resolution  of  Congress  of  May  31,  1786.  The  Regimental  Court  was  replaced  in  18(!2  hy 
the  Field-officer's  Court,  a  tribunal  composed,  as  its  name  implies,  of  a  single  officer, 
and  clotlied  with  summary  jurisdiction  for  the  trial  of  enlisted  men  of  the  regiment  to 
which  it  pertained.  Tlic' Field otfii-er's  Court,  whicii  was  thus  given  exclusive  juris- 
diction for  the  trial  of  all  lases  properly  justiciable  by  inferior  courts  in  time  of  war, 
was  itself  replaced  by  the  Summary  Court  created  by  the  Act  of  June  18,  1898.*  See, 
al80,  the  82d  Article  fu  the  chapter  enlilled  The  Auticlks  of  Wak. 

•  30  SUt.  at  Large.  483. 


24  MILITARY  LAW. 

in  respect  to  place,  and  may  be  convened  by  "  the  officer  commanding'  a 
garrison,  fort,  or  other  place,"  subject  to  the  qualification,  however,  that  the 
troops  constituting  the  garrison  shall  consist  of  different  corps."  Like  the 
Eegiinental  Court,  it  is  superseded  by  the  Summary  Court  in  all  cases  in 
which  that  tribunal  may  properly  be  convened  for  the  trial  of  enlisted  men. 
Constitution  and  Composition. — The  rank  of  the  convening  officer  is 
immaterial  so  long  as  he  is  the  lawful  commanding  officer  of  the  post  or 
garrison  at  which  the  court-martial  is  convened.  The  presence  of  a  single 
representative,  commissioned  or  enlisted,  of  a  corps,  arm,  or  branch  of  the 
service  other  than  that  of  which  the  bulk  of  the  command  is  composed  will 
be  deemed  sufficient  to  fix  upon  the  command  the  character  of  one  in  which 
"  the  troops  consist  of  different  corps  "  within  the  meaning  of  the  Article, 
and  will  empower  the  commanding  officer  thereof  to  order  a  court-martial 
under  the  same.' 

THE    SUMMAEY    COURT. 

History  of  the  Tribunal. — As  the  cases  referable  to  the  inferior  courts 
are,  as  a  rule,  very  much  less  serious  in  importance  than  those  which  are 
referred  to  general  courts-martial  for  trial,  and  as  a  prompt  disposition  of 
such  cases  is,  in  general,  more  beneficial  to  discipline  than  a  protracted 
investigation  into  their  merits,  the  tendency  in  our  service  has  been  to 
replace  the  older  inferior  courts  by  tribunals  having  a  more  summary  juris- 

'  It  is  not  essential  ihat  the  "  officer  commandiug"  should  be  of  the  rank  of  field- 
officer.  A  commanding  officer,  though  a  captain  or  lieutenant,  may  convene  a  court- 
martial  under  this  Article,  provided  he  has  the  required  command.  Dig.  J.  A.  Gen., 
93,  par.  1. 

A  commanding  officer  is  not  authorized  to  detail  himself  ^'Mh.  two  other  officers  as  a 
court  under  this  (or  the  preceding)  Article.  An  "  acting  assistant  surgeon,"  not  being 
an  officer  of  the  Army,  cannot  be  detailed  on  such  coiu't.     Ibid.,  par.  2. 

'  The  general  term  "  other  place"  is  lieemed  to  be  intended  to  cover  and  include  any 
situation  or  locality  whatever— post,  station,  camp,  halting-place,  etc. — at  which  there 
may  remain  or  be,  however  temporarily,  a  separate  command  or  detachment  in  which 
different  corps  of  the  Army  are  represented,  as  indicated  above.  If  such  command,  so 
situated,  contains  three  officers  other  than  the  commander  available  for  service  on  court- 
martial,  the  commander  will  be  competent  to  exercise  the  authority  conferred  by  this 
Article.     Ibid.,  par.  'i. 

*  Held,  in  view  of  the  early  orders  relating  to  the  subject  and  of  the  practice  there- 
under, tlial  the  presence  on  duty  with  a  garrison,  detachment,  or  other  separate  com- 
mand, at  a  fort,  arsenal,  or  other  post  or  place,  and  as  a  part  of  such  command,  of  a 
single  rei)resentative,  ofiicer  or  soldier,  of  a  corps,  arm,  or  branch  of  the  service  other 
than  that  of  which  the  bulk  of  the  command  is  composed — as  an  officer  of  tl.e  quarter- 
master, subsistence,  or  medical  department,  a  chaplain,  an  ordnance  sergeant  or  hospi- 
tal sle%var(l,  an  officer  or  soldier  of  artillery  where  the  command  consists  of  infantry  or 
cavalry,  or  vice  versa,  etc. — might  ha  deemed  sufficient  to  fix  upon  the  command  the 
character  of  one  "where  the  troops  ccmsist  of  different  corps,"  in  the  sense  of  tliis 
Article,  and  to  empower  the  commanding  officer  to  order  a  court-martial  under  the 
same.  The  presence,  however,  with  the  command,  of  a  civil  employe  of  the  Army 
(as  an  "acting  assistant  surgeon")  could  have  no  such  effect.  Dig.  J.  A.  Gen.,  94, 
par.  4. 


TUE  CONSTITUTION  OF  COIUTSMAHTIAL.  26 

diction  and  a  somewliat  less  elaborate  procedure;  thus  enabling  the  minor 
infractions  of  discipline,  in  camp  or  garrison,  to  be  more  expeditiously  dis- 
posed of. 

The  Field-officer's  Court. — The  first  tribunal  thus  created  was  the  Field- 
otKcer's  Court,  which  was  established  by  Act  of  Congress  in  18G2.'  This 
court,  as  its  name  implies,  was  composed  of  a  single  oflicer  and  was  given 
exclusive  jurisdiction  over  the  cases  formerly  tried  by  the  regimental  and 
garrison  courts;  its  proceedings  were  reviewed  and  carried  into  effect  by 
the  "  brigade  comnuinder,  or  by  the  commander  of  the  post  or  camp"  to 
which  the  regiment  was  for  the  time  attached.  Although  tlie  jurisdiction 
of  the  Field-othcer's  Court  was  not  expressly  restricted  to  a  time  of  war  in 
the  enactment  creating  it,  such  a  limitation  was,  in  fact,  imposed  in  the 
revision  of  the  Articles  of  War  in  1874,'  by  the  insertion  of  a  clause  in  the 
80th  Article  restricting  its  operation  to  "  time  of  war."  The  result  of  this 
enactment  was  to  restore  to  the  Kegimental  and  Carrison  Courts  the  au- 
thority to  try  enlisted  men  for  minor  offenses  committed  by  them  in  time 
of  peace.  The  Field-officer's  Court  ceased  to  exist  on  August  17,  1898,  in 
conformity  to  the  repeal  provisions  of  the  Act  of  June  18,  1898.' 

The  Summary  Court  of  1890. — "With  a  view  to  secure  greater  expedition 
in  the  disposal  of  cases  in  which  enlisted  men  were  charged  with  the  com- 
mission of  minor  military  offenses,  a  Summary  Court  was  established  by  Act 
of  Congress  in  1890,*  and  clothed  with  jurisdiction  over  offenses  properly 
triable  by  inferior  courts,  to  the  exclusion  of  the  garrison  and  regimental 
courts.  The  enactment  creating  the  court  contained  the  requirement, 
however,  that  if  the  accused  "  objected  to  a  hearing  and  determination  of 
his  case  by  such  court,"  his  request  for  a  trial  before  a  garrison  or  regi- 
mental court  "  should  be  granted  as  a  matter  of  right,"  As  the  jurisdic- 
tion of  this  tribunal  was  expressly  restricted  to  time  of  peace,  the  Field- 
officer's  Court  was  called  into  being  on  April  22,  1898,  at  the  outbreak  of 
the  war  with  Spain.  On  June  18,  1898,^  Congress,  by  an  appropriate  enact- 
ment, replaced  this  tribunal  by  the  j^resent  Summary  Court,  the  constitution 
and  composition  of  which  will  now  be  explained. 

The  Summary  Court. — Constitution  and  Composition. — The  law  creating 
the  Summary  Court  provides  that  "  the  commanding  officer  of  each  garri- 
son, fort,  or  other  place,  regiment  or  corps,  detached  battalion,  or  company, 

•  Section  7.  Act  of  July  17.  1863.     (12  Stat,  at  Large,  598.) 
»  Act  of  June  22,  1874.     (18  Stat,  at  Large,  W-i.) 

»  Act  of  June  18,  1898.     (30  ibid.,  483.) 

*  Act  of  October  1,  1890.  (26  Stat,  at  Large.  648.)  The  Act  establishing  the  Sum- 
mary Court  of  1890  constituted  the  second  line  officer  in  rank  the  court  for  the  trial  of 
cases  properly  cognizable  by  it  ;  where  only  officers  of  the  stall  were  on  duty  at  a  post, 
the  second  staff  officer  in  rank  was  to  constitute  the  court. 

'  Act  of  June  18,  1898.     (30  Stat,  at  Large.  483.) 


25a  MILITARY  LAW. 

or  other  detachment  in  the  Army,  shall  have  power  to  appoint  for  snch 
place  or  command,  or  in  his  discretion  for  each  battalion  thereof,  a  Snmmary 
Court  to  consist  of  one  officer  to  be  designated  by  him,  before  whom  enlisted 
men  wlio  are  to  be  tried  for  offenses  "  which,  prior  to  the  passage  of  the 
Act^  were  "  cognizable  by  field-officers  detailed  to  try  offenders  under  the 
provisions  of  the  80th  and  110th  Articles  of  War  shall  be  brought  to  trial 
within  twenty-four  hours  of  the  time  of  the  arrest,  or  as  soon  thereafter  as 
practicable."'  It  is  provided,  however,  in  the  statute  establishing  it  that 
the  Summary  Court  "may  be  appointed  and  the  officer  designated  by 
superior  authority  when  by  him  deemed  desirable."  The  statute  also  con- 
tains the  proviso  that  "  when  but  one  commissioned  officer  is  present 
with  a  command,  he  shall  hear  and  finally  determine  such  cases." ' 

Eocception. — The  Act  establishing  the  Summary  Court  excepts  from  its 
jurisdiction  all  enlisted  men  holding  certificates  of  eligibility  to  promotion; 
it  also  provides  that  "  non-commissioned  officers  shall  not,  if  they  object 
tliereto,  be  brought  to  trial  before  summary  courts  without  the  authority 
of  the  officer  competent  to  order  their  trial  by  general  court-martial,  but 
shall  in  such  cases  be  brought  to  trial  before  garrison,  regimental,  or 
general  courts-martial,  as  the  case  may  be.' 

'  Act  of  June  18,  1898.     (iJO  Stat,  at  Large,  483.)        « Ibid,        » IHd. 


MILITARY  LAW. 


Ihh 


CONSTITUTION   OF   COURTS-MAUTIAL :    TART'LAH    STATEMENT." 


President. 


Constitution 
of 
Courts- 
martial. 


General.  ■{ 


Military 
Commander. 


Inferior. 


Commander  of 
Organization 
or  Garrison. 


1.  As     the     coiislitutionai     com- 

iii:inder-in-chief.  {V .  S.  Con- 
stitution.) 

2.  VVben  conveniuj;  oliicer  is  ac- 

cuser or  j)rosecutor.  (72 
A.  W.) 

3.  In  case  of   ofBcer  summarily 

dismissed  in  time  of  war. 
(Sec.  12:]0,  H.  S.) 

1.  General  oflicer  commanding;  an 

army,  territorial  division,  or 
(ieparlnient,  or  Colonel  com- 
mand iiij;  a  sejiarate  dejjart- 
ment.     (72  A.  W.) 

2.  Superintendent  of  tlieMilitary 

Academy.     (Sec.  1325  R.  S.) 

3.  Commander  of  division  or  sep- 

arate brigade.     (73  A.  VV.) 

1.  Summary  Court,  convened  by 
regimental,  battalion,  de- 
tachment, garrison,  or  post 
commander.  (Act  of  June 
18,  1H98.) 
-'  2.  Regimental  Court.  Convened 
by  regimental  commander. 
(81  A.  W.) 

3.  Garrison  Court.     Convened  by 
garrison  or  post  commander. 
(82  A.  W.) 


At  all 
^  times 


t  In  war 

f    only. 


At  all 

times. 


•  Prepared  by  Captain  Geo, 
U,  S.  Military  Academy. 


H.  Boughton,  3d  Cavalry,  Assistant  Professor  of  Law, 


CHAPTER   IV. 

THE  COMPOSITION   OF  COURTS-MARTIAL. 

Composition  in  General. — The  statutes  authorizing  the  several  military 
tribunals  known  as  courts-martial — contain  the  requirement  that  they  shall 
be  composed  of  commissioned  officers — a  term  applied  to  persons  in  the  mili- 
tary service,  of  and  above  the  rank  of  additional  second  lieutenant,  who  have 
been  appointed  by  the  President,  with  the  advice  and  consent  of  the  Senate, 
and  whose  appointments  are  evidenced  by  commissions  under  seal,  signed  by 
the  President  and  countersigned  by  the  Secretary  of  War.'  While  none  but 
commissioned  officers  may  sit  as  members  of  courts-martial  and  courts  of 
inquiry,  certain  persons  holding  commissions  from  the  President,  and,  as 
such,  entitled  to  the  denomination  of  commissioned  officers,  are  not  subject 
to  detail  as  members  of  courts-martial.  To  this  class  belong  professors  at 
the  Military  Academy,  who  are  without  military  rank,'  and  officers  of  the 
retired  list,  who,  in  view  of  the  provisions  of  Sections  1259  and  1260  of  the 
Revised  Statutes,  cannot  legally  be  assigned  to  court-martial  duty.' 

The  Marine  Corps. — The  77th  Article  of  War  provides  that  "  officers  of 
the  regular  army  shall  not  be  competent  to  sit  on  courts-martial  to  try  the 
officers  or  soldiers  of  other  forces  except  as  provided  in  Article  78."  The 
statute  creating  the  Marine  Corps,  normally  a  part  of  the  Xavy,  provides 

'  Under  this  head  fall,  also,  what  are  called  "recess  appointments"  made  by  the 
President  during  an  adjournment  of  the  Senate,  under  the  authority  conferred  by  Article 
II,  Section  2,  of  the  Constitution. 

*  Sections  1333  and  1336,  Revised  Statutes  ;  Dig.  J.  A.  Gen.,  615,  par.  2. 

*  Dig.  J.  A.  (ien.,  87,  par.  1.  Until  the  officers  of  the  several  staff  corps  had  military 
rank  conferred  upon  them  by  Congress,  it  was  not  customary  to  place  them  on  duty  as 
members  of  courts-martial,  although  there  are  instances  in  which  they  were  employed 
as  judge-advocates  ;  this  for  the  reason  that  without  either  actual  or  relative  rank  it 
was  impossible  to  assign  them  seats,  or  to  determine  the  order  of  voting  in  accordance 
with  x.\iK  reqcirement  in  tliat  regard  which  is  contained  in  the  95th  Article  of  War.  So 
s  ion,  hovvever,  as  rank  was  conferred  upon  them  by  enactments  of  Congress,  they  became 
eliiiihle  for  court-martial  duty.  For  the  reason  al>ove  assigned  the  professors  at  the 
Military  Academy,  and  the  chaplain  authorized  at  that  institution  by  the  Act  of  February 
18,  1896,  (29  Stat,  at  Large.  8,)  are  still  ineligible  for  that  duty.  A  medical  officer  of  a 
post  or  station  is  legally  eligible  for  service  on  courts-martial,  either  as  a  member  or  a 
judge-advocate,  and  in  small  commands  surgeons  and  assistant  surgeons  are  not  un- 
frequently  detailed  upon  such  service.  In  view,  however,  of  the  fact  that  a  medical 
officer  of  a  post,  with  a  hospital  or  sick  men  under  his  charge,  is  practically  continuously 
"on  duty,"  besides  requiring  a  considerable  time  for  study,  it  is  deemed  to  be  in  general 
prejudicial  to  the  interests  of  the  service  to  detail  such  officers  upon  court-martials  where 
it  can  well  be  avoided.     Dig.  J.  A.  Gen.,  493,  par.  2. 

26 


TUE   COMPOlSiriON  .OF  COURTS-MAHTIAL.  27 

that  the  corps  so  establislied  "  sliall  be  liable  to  do  duty  iti  the  forts  and 
garrisons  of  the  United  States,  on  the  seacoast,  or  any  other  duty  on  shore, 
as  the  President,  at  his  discretion,  may  direct."  '  When  so  detached  by 
order  of  the  President,  the  law  provides  that  the  Marine  Corps  "  shall  be 
subject  to  the  rules  and  Articles  of  War  prescribed  for  the  government  of 
the  Army.'"  The  78th  Article  of  War  permits  officers  of  that  arm,  when 
BO  detached  for  service  with  the  Army,  to  "be  associated  with  officers  of 
the  regular  army  on  courts-martial  for  the  trial  of  offenders  belonging  to  the 
regular  army  or  to  forces  of  the  Marine  Corps  so  detached."  ' 

Courts-martial  for  the  Trial  of  the  Militia. — Section  1G58  of  the  Revised 
Statutes  contains  the  requirement  that  "  courts-martial  for  the  trial  of 
militia  shall  be  composed  of  militia  officers  only  ";  the  7Tth  Article  of  War 
contains  the  more  conipreliensive  provision  that  "  oflicers  of  the  regular  army 
shall  not  be  competent  to  sit  on  courts  for  the  trial  of  officers  or  soldiers  of 
other  forces  excej)t  as  provided  in  Article  78."  The  converse  of  this  propo- 
sition, however,  is  not  true,  and  officers  of  militia  or  other  forces  may  sit 
on  courts-martial  for  the  trial  of  officers  or  enlisted  men  of  the  regular  army.' 

Volunteers. — Though  assimilated  to  the  militia  in  some  respects,  as,  for 
example,  in  the  mode  of  original  appointment  of  regimental  and  company 
officers,  the  volunteer  forces  are  as  distinct  m  law  from  the  militia  as  are 
the  troops  constituting  the  regular  military  establishment.*     Under  existing 

>  Section  1619,  Rev.  Stat. 

»  Section  1621,  ibid. 

^  In  one  cliiss  of  cases — that  in  wl)ich  a  member  of  the  militia  neglects  or  refuses  to 
.serve  wlien  called  into  actual  service  in  pursuance  of  a  requisition  or  order  of  the 
President  of  tlie  United  States — it  has  been  decided  that  courts-martial  convened  by  the 
authority  of  the  State  and  of  the  United  States  had  concurrent  jurisdiction.  Military 
offenses  not  being  cognizable  by  the  civil  courts  of  the  United  States,  the  militia  laws 
have  provided  that  offenses  of  disobedience  to  the  President's  order  calling  the  militia 
into  actual  service  shall  be  coirnizable  hy  courts-martial  of  the  United  States  ;  a  statute 
of  Pennsylvania  made  such  offenses  triable  by  courts-martial  convened  by  the  authority 
of  the  State,  and  it  was  held  by  the  Supreme  Court,  in  the  case  of  Houston  vs.  Moore 
(5  Wheaton,  1),  that  the  statute  of  the  State  of  Pennsylvania  in  such  case  was  not  in  con- 
flict with  the  similar  enactment  of  Congress,  and  that  a  case  of  concurrent  jurisdiction 
properly  existed.  In  the  case  of  Martin  vs.  INIott  (12  Whenton,  19)  the  judgment  in  the 
case  of  Houston  vs.  Moore  was  atlirmed,  and  it  was  held  that  the  decision  of  the  President 
was  conclusive  as  to  the  existence  of  the  emergenc}-  justifying  the  calling  forth  of  the 
militia.  It  was  also  held  tliat  courts  for  the  trial  of  such  delinquents  must  be  composed 
of  officers  of  the  militia,  but  that  such  provisions  of  the  Articles  of  War  as  regulated 
the  procedure  of  courts-martial  for  the  trial  of  persons  belonging  to  the  regular  esFablish- 
ment  and  to  the  militia  actually  in  service,  did  not  apply  to  the  trials  of  members  of  the 
militia  who  had  refused  or  neglected  to  appear  in  response  to  a  call  issued  in  pursuance 
to  the  order  or  requisition  of  the  Presid(!nt. 

*  Prior  to  the  passage  of  the  Act  of  April  22,  1898.  (30  Stat,  at  Large,  483.)  it  was 
held  that,  although  officers  and  soldiers  of  volunteers,  not  being  militia,  were  as  much  a 
part  of  the  Army  of  the  United  States  as  are  regular  officers,  yet,  in  view  of  the  terms 
of  this  Article,  an  officer  of  the  regular  army,  so  called,  would  not  be  eligible  for  detail 
as  a  member  of  a  court-martial  convened  for  the  trial  of  volunteer  officers  or  soldiers, 
nor,  when  duly  detailed  as  a  member  of  a  court-martial,  would  he  be  competent  to  take 
part  in  the  trial  of  a  volunteer  by  such  court.  Dig.  J.  A.  Gen.,  89.  As  the  Act  "to 
provide  for  temporarily  increasing  the  military  establishment  of  the  United  States  in 


27a  MILITARY  LAW. 

law  officers  and  enlisted  men  of  the  volunteer  forces,  once  mustered  into  the 
military  service  of  the  United  States,  occupy,  so  long  as  they  continue  in 
such  service,  precisely  the  same  status  in  respect  to  the  operation  of  military 
law  as  officers  and  enlisted  men  of  the  regular  army.'  Their  term  of  service 
is  indeed  briefer,  but  this  does  not  constitute  a  material  distinction,  since 
the  term  of  regular  officers  has  also,  in  some  cases,  been  limited  by  statute 
to  a  definite  period,  as  the  duration  of  an  existing  war.' 

Number  of  Members. — The  75th  Article  provides  that  "  general  courts- 
martial  may  consist  of  any  number  of  officers,  from  five  to  thirteen  inclusive; 
but  they  shall  not  consist  of  less  than  thirteen  when  that  number  can  be  con- 
vened without  manifest  injury  to  the  service."'  Such  judicial  powers, 
therefore,  as  are  vested  by  statute  in  a  general  court-martial  become  opera- 
tive and  may  be  fully  exercised  by  a  properly  constituted  tribunal  composed 


time  of  war,"  approved  April  22,  1898,  declares  that  the  Army  of  the  United  States  in 
tune  of  war  shall  consist  of  both  the  regular  army  and  the  volunteer  army,  it  was  held 
that  the  volunteer  army  was  not  other  "  forces"  within  the  meaning  of  the  77th  Article 
of  War,  Circular  21,  A.  G.  O.,  1898.  But  this  ruling  has  been  reversed  by  the  Su- 
preme Court  in  the  case  of  McClaughry  vs.  Doming,  186  U.  S.,  49. 

'  Act  of  June  18,  1898.  (30  Slat,  at  Large,  483.)  The  terra  "  volunteers  "  as  applied 
to  a  part  of  the  military  forces  of  the  United  States,  as  distinguished  from  the  militia,  does 
not  appear  in  the  early  legislation  of  Congress  and  seems  to  have  come  into  use  during 
the  war  of  1812*  and  to  have  had  its  origin  in  Article  I,  Section  8,  of  the  Constitution, 
which  restricts  the  use  of  the  militia  to  the  cases  therein  set  forth— "  to  execute  the 
laws  of  the  Union,  to  repress  insurrections  and  repel  invasions."  As  it  was  contem- 
plated to  use  the  troops  raised  for  that  war  for  purposes  of  invasion,  and  as  some  of  the 
requisitions  for  militia  had  not  been  honored  by  the  governors  of  States,  the  attempt  was 
made  to  raise  troops  by  the  direct  authority  of  the  United  States,  under  the  power  "to 
raise  and  supDort  armies"  conferred  upon  Congress  by  the  Constitution.  These  troops 
vyere  called  "Volunteers  "  to  distinguish  them  from  those  constituting  the  regular  military 
estalilishment.  The  troops  raised  for  the  period  of  the  Mexican  War  were  also  of  this 
class.  As  illustrating  the  distinction  made  in  Article  I,  Section  8,  of  the  Constitution, 
between  the  Array  and  the  militia,  and  indicating  tlie  status  of  the  volunteers,  during 
the  late  war,  as  a  part  of  the  former,  see  Kerr  vs.  Jones,  19  Ind.,  351  ;  Wautlau  m. 
White,  id.,  471  ;  In  the  Matter  of  Kimball,  9  Law  Rep.,  503  ;  Burroughs  vs.  Peyton,  16 

Grat.,  483.  485.  .,,..,  , 

The  first  Mutiny  Act  (1  Wm.  &  M.,  ch.  5,  1689)  recognized  thirteen  as  the  normal 
number  of  officers  necessary  to  compose  a  general  court-martial  in  the  clause  respecting 
the  death-sentence,  which  contained  the  requirement  that  "no  sentence  of  death  shall 
be  given  against  any  offender  in  such  case  by  court-martial,  unless  nine  of  thirteen 
officers  present  concur  therein."  The  same  enactment,  however,  contained  the  require- 
ment that  "if  there  be  a  greater  number  of  officers  present,  then  the  judgment  .sliall 
pass  bv  the  concurrence  of  the  greater  part  of  them  so  sworn,  and  not  otherwise."  This 
would*  indicate  that  courts  composed  of  more  than  thirteen  members  were  known  to 
court-martial  practice  at  the  date  of  the  adoption  of  the  Mutiny  Act.  Walton,  History 
of  the  British  Standing  Army,  pp.  539,  540. 
»  Dig.  J.  A.  Gen.,  p.  745,  par.  1. 

» Seventy-tifth  Article  of  War.  In  the  Duke  of  Albemarle's  Articles  (1606)  the  num- 
ber is  fixed  at  thirteen.  Article  140  of  the  Code  of  Gustavus  Adolphus  fixes  the  mem- 
bership at  the  same  number, 

*  Act  of  February  6,  1812.    (Stat,  at  Large,  676.)    The  Act  of  May  28,  1798.  (1   ibid.,  558,)  conferred  a 
similar  auihority  to  accept  the  services  of  "  volunteers,"  but  was  never  carried  into  operation. 


THE  COMPOSITION  OF  COUIiTS-MAIiTlAL. 


27  b 


of  at  least  five  members.  A  leri.s  number,  as  will  presently  be  seen,  is  witli- 
out  power  to  enter  u{)ori  tlie  trial  of  a  case,  to  proceed  witli  a  trial  already 
begun,  or  to  perform  any  act  of  a  judicial  nature  if,  for  any  reason,  it? 
memberKliij)  sliould  be  reduced  below  tliat  number.  The  number  of  officers 
who  shall  compose  a  ])articular  court  is  determined,  in  conformity  to  the 
terms  of  the  statute,  by  the  proper  convening  authority.  Jii  the  leading 
case  of  Martin  vs.  Mott  it  was  held  by  the  Supreme  Court  of  the  United 


C50MP06ITION  OF  COURTS-MARTIAL:     TABULAR   STATEiMENT." 


Composition 

of 
Courts-martial. 


'  1.   Commissioned  officers,  having  military  rank.     (7o,  77,  78  A.  W.) 

2.  On    iictiv.^   list  of  the  Armv.     Retired  officers    not  eligible.     (Sec 
1259.  R.  S.)  ■ 

3.  Rank  to  be  positive  or  relative  anri,  if  practicable,  superior  to  that 
of  accused.     (79  A.  W.) 

4.  Niuiil)er,  five  to  thirteen  inclusive;   of  thirteen  wheu  that  number 
■{     ■       can  he  assembled  without  manifest  injurv  to  the  service.    (75,  76 

A.  W.) 

5.  Forces  ;  regular  army,  marine  corps,  volunteers,  and  militia  when 
in  iictive  service.  Regular  officers  not  eligible  to  try  otticers  or 
enlisted  men  of  militia  or  other  forces.  (77  A.  \V.,  Sec.  1658,  R.  S.) 
Except  members  of  marine  corps  when  detached  for  service  with 
the  Army.     (78  A.  W.) 


'  Prepared  by  Captain  Geo.  H.  Boughton,  3d  Cavalry,  Assistant  Professor  of  Law, 
U.  S.  Military  Academy. 


28  MILITARY  LAW. 

States  that  the  clause  above  cited  iu  relation  to  the  number  of  mem- 
bers was  ''merely  directory  to  the  officer  appointing  the  court,  and  his 
decision  as  to  the  number  that  can  be  convened  '  witliout  manifest  injury 
to  the  service,'  being  in  a  manner  submitted  to  his  discretion,  must  be  con- 
clusive." ' 

Where  at  a  particular  post  or  detachment  the  statutory  number  of  mem- 
bers cannot  be  assembled,  the  76th  Article  provides  that  the  commanding 
officer  shall  in  such  case  "  report  to  the  commanding  officer  of  the  depart- 
ment, who  shall  thereupon  order  a  court  to  be  assembled  at  the  nearest 
post  or  department  at  which  tliere  may  be  such  a  requisite  number  of  officers, 
and  shall  order  the  party  accused,  with  necessary  witnesses,  to  be  transported 
to  the  place  where  the  said  court  shall  be  assembled."  ' 

Trial  by  Inferiors  in  Rank. — The  79th  Article  of  War,  which  confers 
exclusive  jurisdiction  upon  general  courts-martial  for  the  trial  of  commis- 
sioned officers,  contains  the  added  requirement  that  "  no  officer  shall,  when 
it  can  be  avoided,  be  tried  by  officers  inferior  to  him  in  rank."  Whether 
the  trial  of  an  officer  by  officers  of  an  inferior  rank  can  be  avoided  or  not  is 


•  Martin  vs.  Mott.  13  Wheaton,  19,  35;  U.  S.  vs.  Mullan,  140  U.  S.,  240;  Dyaes  vs. 
Hoover,  20  How.,  81.  The  limitation  with  reference  both  to  the  numbers  and  rank  of  the 
members  of  a  general  court-martial  is  discretionary  with  the  appointing  power.  Mullan 
m.  U.  S.,  23  Ct.  Cls.,  34.  It  is  not  essential  to  the  validity  of  the  proceedings  that  the 
order  convening  a  general  court-martial  of  less  than  thirteen  members  should  state  that 
"no  other  officers"  (or  "no  greater  number")  "than  those  named  can  be  assembled 
without  manifest  injury  to  the  service."  Attorney-General  Wirt*  did  not  hold  such 
a  statement  to  be  essential,  but  simply  expressed  the  opinion  that  the  President,  before 
confirming  a  certain  death-sentence  adjudged  by  a  court  of  less  than  thirteen  members, 
would  properly  satisfy  himself  that  a  court  of  the  full  number  could  not  have  been 
convened  without  prejudice  to  the  service.  It  was  held  at  an  early  period  by  the  U.  S. 
Supreme  Court  that  it  was  for  the  convening  authority  to  determine  as  to  what  number 
of  officers  could  be  detailed  without  manife'-t  injury  to  the  service,  and  that  his  decision 
on  the  subject  would  be  conclusive.!     Dig.  J.  A.  Gen.,  88,  par.  8. 

'  Prior  to  tlie  passage  of  the  first  Mutinv  Act  in  England  there  does  not  seem  to  have 
been  any  fixed  rule  as  to  the  number  of  officers  necessary  to  constitute  a  general  court- 
martial.  In  the  reign  of  James  II.  seven  officers  were  requisite  to  constitute  such  a 
tribunal.  Courts  held  under  the  fir.st  Mutiny  Act  :f  were  composed  of  thirteen  officers 
"  whereof  none  under  the  degree  of  captain."  The  peculiar  circumstances  attending  the 
enactment  of  the  Mutiny  Act  in  the  reign  of  William  and  Mary  suggest,  as  a  reason  for 
fixing  the  number  at  thirteen,  the  analogy  of  the  judge  and  jury  of  twelve  before  whom 
criminal  case<  at  common  law  were  tried.  Such  an  analogy,  indeed,  is  suggested  by 
Clode,  in  his  Military  and  Martial  Law,  in  the  reason  which  he  assigns  for  tlie  selection 
of  the  number  thirteen  as  composing  the  general  court-martial,  first  authorized,  by 
statute,  during  the  reign  of  William  and  Mary:  "When  provision  was  first  made,  under 
the  military  code,  for  tlie  trial  of  an  offender  by  a  court  composed  of  the  president  and 
twelve  officers,  it  may  reasonably  be  presumed  t^at  the  controllir.g  analogy  which 
sugge.sted  the  tribunal  was  the  civil  administration  of  justice  by  a  presiding  judge 
appointed  Vjy  tlie  crown,  and  twelve  jurymen  summoned  by  the  sheriff,  to  deal  with  all 
the  questions  of  law  and  fact  that  might  be  brought  >)efore  them."i^  In  the  English 
service  the  president  is  appointed,  as  such,  by  tlie  convening  authority,  and  has  certain 
functions  assigned  to  him  by  statute  and  regulation. J|  This  is  not  the  case  in  the  United 
States. 


*  1  Opins.  Att  -Gen..  296. 

+  Martin  ?'.<!.  Mott.  12  Wheat.,  19,  35. 

i  1  William  and  Mary.  Ch.  1.  S.  4. 

I  Clode,  Military  and  Martial  Law,  104. 

I  Army  Act  of  1881. 


THE  COMJ'OSJTJOy  OF  COURTS-MARTIAL.  29 

a  (juestion  not  for  the  accused  or  the  court,  but  for  tlie  officer  convening 
the  court;  and  his  decision  upon  tliis  point  (as  indicated  bv-  the  detail  itself 
as  set  forth  in  the  convening  order),  as  upon  tliat  of  the  number  of  menil)ers 
to  be  detailed,  is  conclusive.  An  officer,  therefore,  cannot  successfully 
chullenije  a  momber  simply  Ijecause  he  is  of  a  rank  inferior  to  his  own.* 

Minimum  Membership. ^\\'hile  the  normally  constituted  general  court- 
martial  shouUi,  and  usually  does,  contain  thirteen  members,  it  has  been  seen 
that  it  is  not  necessary  to  the  legality  of  its  procedure  tliat  it  should  be 
composed  of  that  number;  the  corresponding  requirement  respecting  the 
common-law  jury,  that  it  shall  maintain  its  numbers  unimpaired  throughout 
a  particular  trial,  l)eing  obviously  out  of  place,  and  at  times  impossible  of 
attainment,  in  the  practice  of  courts-martial,  especially  in  time  of  war  or 
during  the  pendency  of  active  military  operations.  The  minimum  below 
which  a  general  court-martial  ceases  to  have  power  to  try  cases  is  fixed,  in 
the  7oth  Article  of  War,  at  five  members.  When,  therefore,  for  any  cause, 
a  general  court-martial  has  been  reduced  below  that  number,  it  loses  its 
character  as  a  military  tribunal,  and  can  no  longer  exercise  jurisdiction  as 
such  until,  by  the  return  of  absentees  or  the  detail  of  new  members,  the 
legal  quorum  has  been  restored.^ 

In  the  procedure  of  the  inferior  courts-martial  having  multiple  member- 
sliip  the  three  members  composing  the  tribunal  must  be  constantly  present 

'  Dig.  J.  A.  Gen.,  89,  par.  1.  The  statement  sometimes  added  in  orders  convening 
courts-martial  to  the  effect  that  "  no  officers  other  than  those  named  can  be  detailed 
without  injury  to  the  service"  is  as  superfluous  and  unnecessary  for  the  purpose  of 
excusing  the  detailing  of  officers  junior  to  the  accused  as  it  is  for  accounting  for  the  fact 
that  less  than  the  maximuna  number  have  been  selected  for  the  court.  (See  7oth  Article.) 
Ihid. ,  par.  3. 

At  the  opening  of  a  trial  by  court-martial  it  was  objected  by  the  accused  that  nine  of 
the  tbirteen  memi)ers  as  detailed  were  his  inferiors  in  rank,  and  that  the  detailing  of 
such  inferiors  could  have  been  "avoided"  without  prejudice  to  the  service.  Held  that 
the  objection  was  properly  overruled  by  the  court.  Whether  such  a  detail  "can  be 
avoided  "  is  a  question  to  be  determined  by  the  convening  authority  alone,  and  one  upon 
which  his  determination  is  conclusive.*     Ihid.,  par.  3. 

'^  Where,  in  the  course  of  a  trial,  the  number  of  the  members  of  a  general  court- 
martial  is  reduced  by  reason  of  absence,  challenge,  or  tlie  relieving  of  members,  the 
court  may  legally  proceed  with  its  business  so  long  as  five  members,  the  minimum 
quorum,  remain;  otherwise  where  the  number  is  thus  reduced  below  five.  Ibid.,  87, 
par.  3. 

While  a  number  of  members  less  than  five  cannot  be  organized  as  a  court  or  proceed 
with  a  trial,  they  may  perform  such  acts  as  are  preliminary  to  the  organization  and 
action  of  the  court.  Less  than  five  members  may  adjourn  from  day  to  day,  and  where 
five  are  present  and  one  of  them  is  challenged  the  remaining  four  may  determine  ujion 
the  sufficiency  of  the  objection.      Ibid.,  par.  4. 

A  court  reduced  to  four  members  and  thereupon  adjourning  for  an  indefinite  jieriod 
does  not  dissolve  itself.  In  adjourning  it  should  report  the  facts  to  the  convening 
authority  and  await  his  orders.  He  may  at  any  time  complete  it,  by  the  addition  of  a 
new  member  or  members,  and  order  it  to  reassemble  for  business.     Ibid.,  88,  jmr.  5. 

Where  a  court,  though  reduced  by  the  al)sence  of  members,  operation  of  challenges, 
etc.,  to  below  five  members,  yet  proceeds  with  and  concludes  the  trial,  its  further  jto- 
ceedings,  including  its  finding  and  sentence  (if  an^^,  are  unauthorized  and  inoperative. 
Ibid.,  par.  6. 


*  See  MuUan  vs.  U.  S.,  140  U.  S..  240. 


30  MILITARY  LA  W. 

throughout  the  trial,  and  no  jurisdiction  can  be  exercised  unless  that  number 
of  members  participates  in  the  proceedings. 

Composition  of  the  Inferior  Courts-martial. — The  membership  of  the 
several  inferior  courts,  like  that  of  the  general  court,  is  restricted  to  com- 
missioned officers.'  The  Regimental  Court  is  composed  of  three  officers  of 
the  regiment  or  corps  to  which  the  accused  belongs;'  the  Garrison  Court 
of  three  officers  detailed  from  the  post  or  command  of  the  officer  by  whose 
order  the  court  convened.'  Each  is  provided  with  a  judge-advocate.  The 
composition  of  the  Summary  Court  has  already  been  explained. 

THE    OFFICERS    OF    COURTS-MARTIAL. 

The  President. ^No  special  rank  or  qualilications  are  required  for  the 
position  of  president  of  a  military  court.  h\  our  practice  the  president  is 
not  appointed  as  such;  he  is  simply  the  senior  in  rank  of  the  members 
present,  and  he  presides  by  virtue  of  his  seniority  alone.  If  the  senior  of  the 
officers  detailed  in  the  convening  order  is  not  present  with  the  court  at  the 
original  organization,  the  next  senior  present  becomes  president ;  so  if  the 
officer  who  presided  at  the  beginning  of  a  trial  is  at  a  subsequent  stage  of 
the  proceedings  relieved,  or  compelled  to  be  absent  by  sickness,  etc.,  the  next 
ranking  officer  present  presides  as  a  matter  of  course;  and  the  senior  officer 
present  with  the  court  at  the  termination  of  the  trial  authenticates  the  pro- 
ceedings as  president.* 

The  president  of  a  court-martial  is  in  no  sense  its  commanding  officer; 
he  can  exercise  no  military  command  over  its  members,  and  is  without  power, 
as  such,  either  to  conduct  or  to  direct  or  control  its  proceedings."  In  a 
leading  case  on  this  suljject  it  was  decided  by  the  President  of  tlie  United 
States  that  "  the  presiding  officer  of  a  court-martial  (besides  the  duties  and 
privileges  of  a  member)  is  only  its  organ.  He  speaks  and  acts  for  it  in  each 
case  when  the  particular  rule  has  been  prescribed  by  law,  regulation,  or  its 
own  resolution.  He  announces  the  adjournment  when  the  prescribed  hour 
has  arrived.  He  cannot  adopt  an  hour  different  from  that  wliich  has  been 
prescribed  without  the  approbation  of  a  majority  of  tlie  court  when  in 
session.  The  right  of  regulating  its  own  sessions  is  important  and  necessary, 
and  the  limitation  placed  on  it  by  the  95th  Article  of  War  was  obviously 
intended  to  secure  full  and  fair  deliberation.     In  this  and  all  deliberations 

'  Section  1342.  Revised  Statutes.     See,  also,  page  26,  ante. 
■  81st  Article  of  War. 
»  82d  Article  of  War. 

*  Dig.  J.  A.  Gen.,  608,  par.  1;  see,  also.  Manual  for  Courts-martial,  22. 

*  The  president  of  a  military  court  has  no  command  as  sucli.  As  president  he  cannot 
give  an  order  to  any  other  member.  As  the  organ  of  tlie  court  he  gives  of  course  the 
directions  necessary  to  the  regular  and  proper  conduct  of  the  proceedings;  but  a  failure 
to  comply  with  a  direction  given  by  him,  wliile  it  may  constitute  "  conduct  to  the 
prejudice  of  good  order  and  military  discipline,"  cannot  properly  be  charged  as  a 
■'disobedience  of  a  lawful  command  of  a  superior  officer "  in  violation  of  Article  21. 
Ibid.,  609.  par.  4. 


TUE  COMPO:<lTl(jy  OF  COURTS  MARTIAL.  31 

of  the  court  the  etiuality  of  tlie  several  members  was  intended  to  be 
preserved."  ' 

The  presiding  officer  is  the  agency  tlirough  vvliich  the  court,  as  such, 
comnmnicates  witli  the  convening  authority  or  witii  others;  lie  is  responsi- 
ble for  the  preservation  of  order  in  the  immediate  presence  of  the  court,  he 
presides  at  its  deliberations,  and  may  exercise,  in  that  capacity,  the  authority 
vested  in  the  chairman  of  a  deliberative  body  by  the  rules  of  parliamentary 
})rocedure,  and  when  a  decision  has  been  reached  as  a  result  of  such  delibera- 
tion, he  announces  the  same  in  open  court.  "  In  deliberations  on  questions 
raised  upon  a  trial,  however,  as  well  as  in  the  finding  and  the  adjudging  of 
the  sentence,  the  presiding  member  is  on  a  perfect  equality  with  the  other 
members.  He  has  no  casting  vote,  nor,  if  the  vote  is  even,  does  his  vote 
have  any  greater  or  other  weight  or  effect  than  that  of  any  other  member."  ' 

Members. — The  qualifications  for  membership  have  already  been 
described.  It  is  proper  to  observe,  however,  that  such  membership  is  com- 
posed not  only  of  commissioned  officers,  but  of  commissioned  officers  having 
military  rank.  This  to  enable  members  to  cast  their  votes  in  accordance  with 
the  requirement  of  the  9oth  Article  that  "  members  of  a  court-martial  in 
giving  their  votes  shall  begin  with  the  youngest  in  commission.  In  all 
other  respects  it  is  tlie  purpose  of  the  statutes  creating  the  several  military 
tribunals  to  secure  an  absolute  equality  of  rights  in  respect  to  the  member- 
ship.' 

'  Tlie  case  of  Brevet  Lieutenant-Colonel  Backenstos,  published  in  General  Orders  No. 
14,  WviT  Department,  of  1850.  Imm"  tlu'  president  of  a  court-martial  to  assume  to  adjourn 
tlie  (Murt  against  the  vote  of  the  majtjrity  of  the  members  would  be  an  unauthorized  act 
and  a  grave  irregularitv,  properlv  subjecting  him  to  a  charge  under  the  63d  Article. 
Dig.  J.  A.  Gen., '609,  jmr.  5. 

■  Dig.  J.  A.  («eu.,  609,  par.  o.  While  a  special  authority — that  of  swearing  the  judge- 
advocate — is  devolved  upon  the  president  of  a  military  court  by  statute  (tlie  Soth  Article 
of  War),  such  officer  has  in  other  respects — as  in  performing  tlie  usual  duties  of  a 
presiding  officer,  in  authenticating  the  proceedings  with  his  signature.  an<l  in  communi- 
cating with  the  convening  officer  or  other  commander — no  original  authority,  but  acts 
simply  as  the  representative  and  "organ"  of  the  court.     Ibid.,  60S,  jiar.  2. 

The  further  function  devolved  upon  liira  by  Article  52  is  not  known  to  have  ever 
been  exercised  in  our  service;  the  .Article  itself  if;  a  dead  letter,  as  is  also  Article  53  in 
pari  inaterin .      I})i(J..  608,  par.  2.     Note,  2. 

In  the  British  service  there  is  a  marked  difference  of  practice  in  this  respect.  The 
president  is  named  in  the  order  appointing  tlie  court.  He  must  be  a  field-officer,  unless 
the  convenintr  officer  is  below  tliat  rank,  or  unless  such  convening  authority  is  of  opinion 
tliat  a  field-officer  is  not  availal>le  for  detail;  in  either  of  these  cases  an  officer  not  below 
the  r;uik  of  captain  may  be  appointed,  if  sui-li  an  officer  be  available;  otherwise,  unless  a 
warrant  officer  is  to  be  tried,  the  jiresident  may  bi*  detailed  from  the  grade  of  lieutenant  * 
Wheneve-  a  general  or  colonel  is  available  for  detail,  an  officer  i>f  inferior  rank  is  not  t<i 
be  ai^pointed.     Queen's  Reg.,  Sec    VI,  par.  95. 

The  ])resident  is  responsible  for  the  ]iroper  conduct  of  the  trial;  he  is  to  see  that 
justice  is  administered,  that  the  ]irisoner  has  a  fair  trial,  and  that  he  (lo»\s  not  suffer  any 
disadvantaefe  in  consequence  of  his  position  as  a  prisoner,  or  of  his  igni>rance.  or  of  his 
capacitv  to  examine  or  cross-examine  witnesses,  or  otherwise. f  Enarlish  Army  Act  of 
1881,  Sec.  58. 

*  See  paragraph  entitled  "  The  President,"  supra. 

*  Manual  of  Military  Law.  .590,  .591. 
t  Ib'rI..  6*2.  623. 


32  MILITARY  LAW. 

When  a  court-martial  has  been  called  into  being  by  a  competent  conven- 
ing authority,  and  has  entered  upon  the  hearing  of  a  case  properly  referred 
to  it  for  trial,  it  is  independent  of  such  autiiority  pending  the  hearing  and 
determination  of  the  case.  As  he  created  it,  he  may  terminate  its  existence 
at  his  discretion  or,  by  a  proper  order,  may  cause  a  particular  case  to  be  dis- 
continued at  any  stage  of  the  trial;  '  but  unless  such  power  be  exercised,  the 
convening  officer  is  without  power  to  regulate  its  conduct,  or  to  control  or 
influence  its  deliberations.^ 

New  Members;  Relieving  Members. — Unlike  the  common-law  jury,  it 
is  not  essential  to  the  legality  of  a  trial  by  court-martial  that  the  composition 
of  the  tribunal  should  remain  unchanged  during  the  progress  of  the  trial; 
new  members  may  be  added,'  and,  ujion  the  occurrence  of  a  sufficient 
emergency,  members  who  have  participated  in  a  portion  of  the  trial  may  be 
relieved  and  assigned  to  other  posts  of  duty.  The  mere  promotion  of  an 
officer  during  the  trial  of  a  particular  case,  or  his  appointment  to  a  highei 
grade,  would  in  no  way  affect  his  competency  to  participate  in  the  trial." 
It  is  highly  desirable,  however,  that  the  composition  of  a  court-martial 
should  remain  unchanged,  especially  during  the  pendency  of  a  particular 
trial,  and  in  practice  members  are  rarely  relieved  from  or  added  to  a  court 
during  the  trial  of  a  particular  case.^ 

'  Dig.  J.  A.  Gen  ,  536;  ibid.,  458,  par.  10;  id.,  315,  par.  7.  See,  posf,  the  article 
entitled  "Nolle  Prosequi." 

^  Macomb,  §  16.  A  court-martial  should  in  general  be  left  to  determine  its  own  course 
of  procedure,  except  where  the  same  is  defined  by  law  or  usage.  It  would  be  unwar- 
ranted by  usage  to  require  in  orders  that  a  court-martial  shall  adopt  a  certain  procedure 
in  any  case  or  class  of  cases  as  to  a  matter  properly  within  its  discretion.  Thus  a  com- 
mander could  not  properly  order  that  courts-martial  convened  by  him  should  take  testi- 
mony in  cases  in  whicli  the  accused  pleaded  guilty,  though  he  might  properly  recommend 
their  doing  so.     Dig.  J.  A.  Gen.,  313,  par.  2. 

^  To  add  a  new  member  to  a  military  court  after  any  material  part  of  the  trial  has  been 
gone  through  with  must  always  be  a  most  undesirable  measure,  and  one  not  to  be  resorted 
to  except  in  an  exceptional  case  and  to  prevent  a  failure  of  justice.  Adding  a  member 
after  all  the  testimony  has  been  introduced,  and  nothing  remains  except  the  finding  and 
sentence,  is  believed  to  be  without  precedent.     Dig.  J.  A.  Gen.,  495,  par.  3. 

*  The  receipt  l)y  a  member,  during  the  proceedings  of  the  court,  of  an  appointment  to 
a  higher  rank,  or  of  other  ofRcial  notice  of  his  promotion,  can  affect  in  no  manner  his 
competency  to  act  upon  the  court.  The  fact  of  tbe  promotion  should  indeed  be  noted  in 
the  record  and  the  officer  be  thereafter  designated  by  his  new  rank.     Ihid.,  par.  4. 

5  Where,  in  the  course  of  a  trial  by  court-martial,  a  member  of  a  court  is  served  with 
a  legal  order  in  due  form  dismissing  or  discharging  him  from  the  military  service,  or  an 
official  communication  notifying  him  of  the  acceptance  of  his  resignation,  he  becomes 
thereupon  separated  from  the  Army  and  can  no  longer  act  upon  the  court ;  he  should 
therefore  at  once  withdraw  therefrom,  and  the  fact  of  his  withdrawal,  explained  by  a 
copy  of  the  order,  be  entered  upon  the  record.  And  the  proceeding  should  be  similar 
where  a  member  is  served  with  an  order  of  the  President  placing  him  upon  the  retired 
list ;  retired  officers  not  being  legally  competent  to  sit  upon  courts  martial      Ihid. 

Where  an  officer  detailed  as  a  member  of  a  general  court-martial  was  duly  relieved 
by  order  therefrom,  but  continued  notwithstanding  to  sit  upon  the  court  during  a  trial, 
taking  part  in  the  findings  and  sentence,  Jteld  that  the  proceedings  and  sentence  should 
properly  be  disapproved.*    Ibid.,  496,  par.  6. 

Where  the  term  of  service  of  a  member  as  an  officer  of  volunteers  expired  jiending  a 
trial  by  the  court,  held  that  the  member  was  not  thereupon  disqualified,  but  could  legally 

•  See  General  Court-martial  Orders  No.  20,  Department  of  Calif oinia,  1880. 


'IHK   COMPOSITION   OF  COURTS-MARTIAL.  33 

Performance  of  Other  Duties.— The  liability  of  members  of  courts- 
martial  to  perform  duty  with  their  commauds  is  regulated  by  Paragraph 
1>18,  Army  Keguiations  of  1895,  which  provides  that  "  a  member  stationed 
at  the  place  where  it  sits  is  liable  to  duty  with  liis  command  during 
adjournment  froni  day  to  day."  ' 

The  Judge-Advocate.  — All  courts-martial  having  general  as  distin- 
guished from  summary  jurisdiction  are  provided  with  officers,  detailed  for 
the  purpose  by  the  proper  convening  authority,  whose  duty  it  is  to  i)rosecute 
cases  coming  before  theiu  in  the  name  of  the  United  States.  The  appoint- 
ment of  th^se  ortieers  is,  by  the  terms  of  the  74th  Article,  vested  in  the 
several  convening  officers,  who,  as  a  consequence  of  their  power  to  appoint 
courts-martial,  are,  by  that  Article,  authorized  to  appoint  judge-advocates 
for  the  same.'^  "  While  a  civilian  may  legally  be  appointed,  or  rather 
employed,  as  judge-advocate  of  a  court-martial,  such  an  employment  has 
for  the  past  'fifty  years  been  of  the  rarest  occurrence  in  llie  military 
service,'"  and  the  duty  is  now  invariably  performed  by  a  commissioned 
olticer  of  the  Army,  selected,  as  above  described,  by  the  proper  convening 
authoritv.*     All  commissioned  officers,  whether  belonging  to  the  line   or 


ontinue  to  act  upon  tlie  court  till  actually  discharged  or  mustered  out  of  the  service  * 
I>iil.  J.  A.  Gen.,  par.  4.  ,      ,      .  . 

'  See,  also,  "  Manual  for  Courts-martial,"  p.  22.  In  an  emergency  indeed  ariMug  (jui 
of  a  state  of  war  or  other  i)ublic  exigency,  additional  service  may  be  imposed  upon  such 
officers  ;  in  a  case  of  this  kind,  however,  their  service  on  the  court  would  preferably  be 
temporarily  suspended.     Ibid  ,  493,  par.  1. 

'  See  note.'?  *o  the  Seventy-fourth  Article  in  the  chapter  entitled  The  Aktkles  OF 

W.\R. 

*  The  last  occasions  of  such  employment  are  believed  to  have  been  those  of  the  trial 
of  the  persons  charged  with  complicity  in  the  assassination  of  President  Lincoln,  and  the 
trial  of  Major  Ihuldo.'k,  Prov.  Mar."Dept.,  (see  (i.  C.  M.  O.  356  and  5G5,  War.  Dept., 
1865,)  upon  which  Hon.  J.  A.  Bingham  and  Hon.  Roscoe  Conkling  were  respectively 
employed  as  judge-advocates.  In  an  early  case  the  Hon.  Martin  Van  Buren,  who  was 
afterwards  a  President  of  the  Unite  1  States,  was  emploved  as  judge-advocate. 

In  view  of  the  provisions  of  Sec.  17  of  the  Act  of  June  22,  1870.  (Sec.  189,  Rev.  Sts.,) 
transferring  to  the  l)ei)artment  of  Justice  the  authority  to  employ  counsel  for  the  execu- 
tive deiiartmeiits,  neither  the  Secretary  of  War  nor  the  Secretary  of  the  Navy  is  now 
authorized  to  retain  a  civilian  lawyer  to  act  as  judge-advocate  of  a  court-martial.  13 
Opins.  Att.-Gen..  514  ;  14  ibid.,  13. 

■•  Any  commissioned  officer  may  legally  be  appointed  judge-advocate  of  a  court- 
martial.  Thus  a  surgeon,  assistant  surgeon,  or  even  a  chaplain  is  legally  eligible  to  be 
so  detailei.  Dig.  J.  A.  Gen.,  456,  par.  2.  A  medical  officer  of  a  post  or  station  is 
legally  eligible  for  service  on  courts-martial,  either  as  a  member  or  a  judge-advocate, 
and  in  small  commands  surgeons  and  assistant  surgeons  are  not  unfre()uently  detailed 
upon  such  service.  In  view,  however,  of  the  fact  that  a  medical  officer  of  a  post,  with  a 
hos[)ital  or  sick  men  under  his  charge,  is  practically  continuously  "on  duty,"  besides 
requiring  a  considerable  time  for  study,  it  is  deemed  to  be  in  general  prejudicial  to  the 
interests  of  the  service  to  detail  such  officers  upon  courts-martia'  where  it  can  well  be 
avoided.     Ibid.,  493.  par.  2. 

An  officer  serving  as  judge-advocate  on  the  st  iff  of  a  department  or  army  commander 
has,  as  such,  no  authority  to  act  as  judge-advocate  of  a  court-martial  convened  by  such 
commander.  If  it  is  desired  that  he  should  act  as  judge-advocate  of  such  a  court,  he 
should  be  specially  detailed  for  the  pur])ose.      Ibid..  456.  par.  6.     A  court-mnrtial  has  of 

*  In  a  case  in  Q.  C.  M.  O.  104.  Dept.  of  Kentuokv.  186.V  the  proceed ines  were  properly  di-sapproved 
because  a  member  had  reiiiaiiieil  and  acted  upon  the  trial  after  receiving  official  notice  of  his  muster- 
out. 


34  M I  LIT  All  Y   LAW. 

staff  of  the  Army,  are  eligible  for  detail;  the  selection  in  a  particular 
instance  being  determined  by  the  character  and  importance  of  the  case  to  be 
tried  and  tiie  capacity  of  the  officer  for  the  performance  of  the  duty. 

A  separate  judge-advocate  should  be  appointed  for  each  general  court- 
martial  convened  by  a  department  or  other  competent  commander.  The 
same  officer  may  indeed  be  selected  to  perform  the  duties  of  judge-advocate 
as  often  as  may  be  deemed  desirable  by  the  comnumder,  but  he  should  be 
detailed  anew  for  every  court-martial  on  whicii  he  acts.  To  appoint  in  a 
"■eneral  order  a  particular  officer  to  act  as  judge  advocate  for  all  the  courts 
to  be  held  in  the  same  command  would  be  quite  irregular  and  without  the 
sanction  of  precedent.' 

Relief  of  Judge- Advocate. — As  the  judge-advocate  derives  his  authority 
to  act  from  the  appointment  of  a  particular  convening  authority,  "it  is 
comi^etent  for  the  commander  who  has  convened  a  court-martial  to  relieve 
the  officer  originally  detailed  in  that  capacity  and  substitute  another  in  his 
place,  and  the  second  may  in  the  same  manner  be  relieved  by  a  third,  etc. 
The  relieving,  however,  of  a  judge-advocate,  pending  a  trial,  must  in 
general  embarrass  the  prosecution  of  a  case,  and  should  not  be  resorted  to 
if  it  can  well  be  avoided." 

Source  of  Authority. — Although  the  judge-advocate  is  an  officer  of  the 
court,  his  power  to  act  as  such  is  derived,  not  from  the  court,  but  from  the 
convening  authority.  For  this  reason  the  court  is  without  authority  to 
appoint  a  judge-advocate  or,  in  the  event  of  a  vacancy  occurring  in  the 
office,  to  authorize  one  of  its  members  to  act  in  his  stead;  sucb  power  being 
vested,  by  tlie  statute,  in  the  officer  convening  the  court.' 

General  Duties  of  the  Judge- Advocate. ^ — It  has  been  seen  that  the  office 
of  judge-advocate  is  a  temporary  employment  created  by  statute;  the  general 
duties  of  the  office  are  defined  in  the  90th  Article  of  War,  which  empowers 
the  judge-advocate  to  prosecute  in  the  name  of  the  United  States.     Other 


course  no  authority  to  direct  or  empower  its  junior  member  or  any  other  officer  to  act  as 
its  judge-advocate.     Ibid.,  par.  5. 

'  Dip.  J.  A.  Gen.,  456,  par.  3. 

'  Jhid.,  par.  4. 

^  Ibid.,  456,  par.  5.  A  direction,  in  an  order  conveninfr  a  general  court-martial,  that 
if  the  judge- advocate  be  prevented  from  attending  the  junior  member  of  the  court  will 
act  in  his  stead  ?ield  irregular  and  improper;  the  function  of  a  judge-advocate  as 
prosecuting  officer*  not  being  properly  compatible  with  that  of  a  member  of  a  court- 
martial.  And— the  member  having  acted  as  judge-advocate  in  this  case — adn'sed  that 
the  j.roceedings  (though  the  court  had  still  retained  five  members)  be  disapi)roved  by 
the  reviewing  authority.      Ibvl. 

Where  a  court-martial  excused  its  judge-advocate,  and  required  its  junior  memb-r  to 
act  as  judge  advocate  in  his  stead,  lield  that  its  action  was  wholly  unauthorized  and  tliat 
its  proceedings  were  properly  disapproved.!  It  is  only  the  convening  authority  (or  his 
successor  in  command)  who  can  relieve  or  detail  a  member  or  a  judge-advocate.  Ihid., 
317,  par.  16. 


•  See  the  90th  Articlp  of  War. 

+  See  G.  C.  M.  O.  C2,  War  Dept.,  1874. 


THE  COMl'OSITIOS  OF  CO UliTS- MARTIAL.  35 

statutes  and  regulations  confer  upon  him  the  power  to  summon  witnesses 
and  in  certain  cases  to  compel  their  attendance  by  the  issue  of  compulsory 
process.  The  law,  regulations,  and  the  custom  of  service  thus  vest  in  the 
judge-advocate  the  duty  of  j)reparing  the  case  for  trial  and  charge  him  with 
the  res])onsibility  of  conducting  the  prosecution. 

A  court-martial,  being  a  judicial  body,  has  power  to  hear  and  determine 
cases  which  have  been  properly  brought  before  it,  but,  except  in  case  of 
certain  contempts  committed  in  its  presence,  is  without  authority  to  insti- 
tute trials  or  to  conduct  prosecutions.  It  looks  to  the  judge-advocate,  its 
regularly  constituted  prosecuting  officer,  to  originate  business,  that  is,  to 
bring  cases  before  it  for  trial  In  his  capacity  as  prosecuting  officer,  there- 
fore, the  judge-advocate  is  not  subject  to  its  control,  and  "  will  properly  be 
left  by  the  court  to  introduce  the  testimony  in  the  form  and  order  deemed 
by  him  to  be  the  most  advantageous  and,  generally,  to  bring  on  cases  for 
trial  and  conduct  their  prosecution  according  to  his  own  judgment."  ' 

Duties  of  the  Judge-Advocate  Previous  to  the  Trial. — The  principal 
duty  of  the  judge-advocate  i)rior  to  the  meeting  of  the  court  is  to  prepare 
his  case  or  cases  for  trial.  This  includes  the  summoning  of  the  witnesses' 
for  the  prosecution  and  defense,  and  the  preliminary  examination  of  the 
former  with  a  view  to  a  regular  and  orderly  presentation  of  the  case  in 
behalf  of  the  United  States.  If  other  witnesses  than  those  named  in  the 
charges  and  specifications  are  material  and  necessary,  they  are  summoned  by 
the  judge-advocate;  the  names  of  the  witnesses  desired  by  the  accused  are  also 
obtained  and  formal  summons  are  issued  for  their  appearance.'  The  regula- 
tions restrict  the  power  of  the  judge-advocate  in  this  respect  to  the  extent 
of  forbidding  him  to  summon  witnesses,  at  the  expense  of  the  Government, 
without  the  order  of  the  court,  unless  satisfied  that  their  testimony  is 
material  and  necessary.* 

'  Di^.  J.  A.  Gen.,  458,  par.  11.  Strictly,  communications  from  the  convening  autbor- 
itv  to  the  court  as  tuc/i,  (and  vice  rer'sa,)  should  be  made  to  (and  hv)  tlie  president  xs  its 
organ  ;  communications  relating  to  the  conduct  of  the  prosecution  to  (and  bvj  the  judge 
advocate.      Ibid.,  318,  par.  17. 

'  Tlie  attendance  of  witnesses  is  obtained  as  to  military  persons  by  military  orders 
issued  by  competent  authority;  as  to  civilians,  by  the  issue  of  a  writ  of  subpo-na.  (For 
forms  of  this  writ,  see  Manual  for  Courts-martial,  i>p.  138,  139.)  The  latter  form  i>{ 
process,  being  inapplicable  to  the  case,  is  never  issued  to  a  military  ))erson. 

A  judge-advocate  is  authorized  to  subpoena  witnesses  only  for  testifying  in  court  ;  hr 
cannot  summon  a  witness  to  appear  before  himself  for  preliminary  examination.  For  this 
purpose  he  must  procure  an  order  to  be  issued  by  the  proper  comniander.  Die.  J.  A. 
Uen.,  p.  462,  par.  31. 

A  judireadvocate  has  no  authority  to  employ  a  civil  official  or  private  civilian  to  serve 
subprenas  if  bv  so  doing  the  United  States  will  be  subjected  to  a  claim  for  compensation. 
Jbid..  p.  463.  par.  32. 

'  For  a  discussion  of  this  subject,  .see  the  chaptor  entitled  Evidence. 

*  Paragraph  922,  Army  Regulations  of  1895. 

Except  where  their  testimony  will  be  merely  cumulative,*  and  will  clearly  add  noth- 
ing whatever  to  the  strength  of  the  defense  (see  Ninety-third   Article),  the  accused  is  in 

*  For  a  definition  of  the  term  "  cumulative  testimony,"  see  the  chapter  entitled  Evidenck. 


36  MILITARY  LAW. 

Amendment  and  Modification  of  Charges. — The  case  which  it  is  the  duty 
of  the  )iulge-advocute  to  prepare  for  trial  is  that  referred  to  him  by  the  coii- 
vening  authority."  Where,  therefore,  charges,  already  formally  preferred, 
are  transmitted  to  him  for  prosecution,  lie  should  not  assume  to  modify  them 
in  nuiterial  particulars  in  the  absence  of  authority  from  the  convening  officer. 
Wliilc  he  may  ordinarily  correct  obvious  mistakes  of  form,  or  patent  or  slight 
errors  in  names,  dates,  amounts,  etc.,  he  cannot  without  such  authority 
make  substantial  amendments  in  the  allegations,  or — least  of  all — reject  or 
withdraw  a  charge  or  specification,  or  enter  a  nolle  prosequi  as  to  the  same, 
or  substitute  a  new  and  distinct  charge  for  one  transmitted  to  him  for  trial 
by  the  proper  superior.' 

Counsel  for  the  Accused. — In  addition  to  his  duty  as  prosecuting  officer 
in  behalf  of  t'le  United  States,  the  90th  Article  of  War  provides  that  the 
judge-advocate  "  shall  so  far  consider  himself  counsel  for  the  prisoner  as  to 
object  to  any  leading  rpiestion  to  any  of  the  witnesses,  and  to  any  question 


general  entitled  to  have  any  and  all  material  witnesses  summoned  to  testify  in  Lis  behalf.* 
A  prompt  obedience  to  a  summons  is  incumbent  upon  all  witnesses;  nor  is  a  commanding 
or  superior  officer  in  general  authorized  to  place  any  obstacles  in  the  «  ay  of  the  prompt 
attendance,  as  a  witness,  of  an  inferior  duly  summoned  or  ordered  to  attend  as  such.f 
Where  the  judge-advocate  has  declined  to  summon  a  witness  for  the  accused,  for  the 
reason  that  he  is  not  "  satisfied  "  (in  the  words  of  paragraph  922  of  the  Army  Regulations 
of  1895)  that  his  testimony  is  "  material  and  necessary  to  the  ends  of  justice,"  the  court 
mav,  in  its  discretion,  direct  him  to  be  summoned.  The  court,  however,  will  not  in  gen- 
eral'  properly  sanction  the  summoning  of  a  witness  where  it  is  not  probable  that  his 
attendance  can  be  secured  within  a  reasonable  time  and  his  deposition  legally  be  taken 
pursuant  to  the  Ninety-first  Article  of  War.     Dig.  J.  A.  Gen.,  751,  par.  9. 

In  military  law  an  accused  party  cannot  be  deemed  to  be  entitled  to  have  a  witness 
summoned  from  a  distance  whose  military  or  administrative  duties  are  of  such  a  char- 
acter that  thev  cannot  be  left  without  serious  prejudice  to  the  public  interests.  Article 
VI  of  the  amendments  to  the  Constitution,  declaring  that  the  accused  shall  be  entitled  "to 
be  confronted  with  the  witnesses  against  him,"  applies  only  to  cases  before  the  United 
States  courts.  Thus  where  the  ofTense  charged  is  not  capital,  and  a  deposition  may  there- 
ftjre  legally  be  taken  under  the  Ninety-first  Article  of  War,  the  Secretary  of  War  will  not 
in  general  authorize  the  personal  attendance  at  the  place  of  trial  of  a  witness  whose 
office  or  duty  makes  it  necessary  or  most  important  that  he  should  remain  elsewhere. 
Ibid.,  752,  par.  10. 

An  accused  party  at  a  military  trial  can  rarely  be  entitled  to  demand  the  attendance, 
as  a  witness,  of  a  chief  of  a  staff  corps,  much  less  that  of  the  President  or  the  Secretary  of 
War,  especially  as  some  minor  official  can  almost  invarial)ly  furnish  the  desired  facts. 
If.  however,  the  testimony  of  one  of  these  officials  l)e  found  to  be  necessary  or  most  de- 
sirable, and  tlie  same  cannot  legally  l)e  taken  by  deposition,  the  court,  if  convened  at  i 
distance,  may  properly  be  adjourned  to  Washington  or  other  convenient  point,  in  ordes. 
that  ihe  witness  may  be  enabled  to  attend  without  detriment  to  the  public  interests,. 
Jbi'L,  par.  11. 

'  Dig.  J.  A.  Gen.,  457,  par.  9.     See,  also,  the  title  "Counsel  for  the  Accused,"  post. 

*  Ibid.,  458,  par.  10. J  The  judge-advocate  is  not  infrequently  directed  to  prepare  oi 
reframe  charges  ;  i;  when  such  a  duty  is  imposed  upon  him  tlie  judge-advocate,  acting 
as  the  agent  of  the  convening  authority  and  not  in  his  capacity  as  an  officer  of  the  court, 
is  to  be  guided  by  such  instructions  as  have  been  given  him  liy  that  officer. 


*  See  O.  0.  M.  O.  21.  24.  War  Department.  1873;  O.  C.  M.  O.  128.  Headquarters  of  Army,  1876. 

t.See  (i.  C.  M.  O.  18.  Department  of  the  Plattp.  18:7. 

t  See  O.  O.  64.  Dept.  of  the  Ciimherland.  1867:  do.  (8,  id..  1868;  <1o  «5,  Dept  of  th«»  South,  1874: 
G.  C.  M.  O.  36,  42,  Dept.  of  the  Platte,  1877;  (Jo.  13,  id.,  1878;  do.  48,  Mil.  Div.  of  Pacific  &  Dept,  ol 
Cai..  1880. 

§  Dig.  J.  A.  Gen.,  458.  par.  10. 


TUE  COMPOSITION  OF  COURrSMARTfAL.  37 

to  the  prisoner,  the  answer  to  which  nii;i,'ht  tend  to  criminate  liimself.'" 
The  duty  of  the  judge-iidvociite  towiird  the  accuped  .sliouUl  not  be  regarded 
as  con  lined  to  the  limited  province  of  "  counsel  for  the  prisoner"  as  the 
same  is  detined  in  the  VtUth  Article  of  War.  Where  the  accused  is  ignorant 
and  inexperienced  and  without  counsel — especially  where  he  is  an  enlisted 
man — the  judge-advocate  should  take  care  that  he  does  not  sulfer  upon  the 
trial  from  any  ignorance  or  misconception  of  his  legal  rights,  ami  has  full 
opportunity  to  interpose  such  plea  and  make  such  defense  as  may  licst  bring 
out  the  facts,  the  merits,  or  the  extenuating  circumstances  of  his  case.'"' 

1'his  duty  is  more  especially  incumbent  on  the  judge-advocate  in  cases 
where  the  prisoner  has  not  the  aid  of  professional  counsel  to  direct  him, 
which  generally  happens  in  the  trials  of  private  soldiers,  avIio,  wanting  all 
advantages  of  education  or  opportunities  of  mental  improvement,  must 
stand  greatly  in  need  of  advice  in  such  trying  circumstances  as  are  sutticient 
to  overwhelm  the  acutest  intellect,  and  embarrass  or  suspend  the  powers  of 
the  most  cultivated  understanding.  It  is  certainly  not  to  be  understood 
that  in  discharging  this  office,  whicli  is  prescribed  solely  by  justice  and 
humanity,  the  judge-advocate  should  in  the  strictest  sense  consider  himself 
as  bound  to  the  duty  of  a  counsel,  in  exerting  his  ingenuity  to  defend  the 
prisoner  at  all  hazards  against  those  charges  which,  in  his  capacity  as  prose- 
cutor, he  is,  on  the  other  hand,  bound  to  urge  and  sustain  by  proof;  for, 
understood  to  this  extent,  the  one  duty  is  utterly  inconsistent  with  the  other. ^ 

All  that  is  required  is  that,  in  the  same  manner  as  in  the  civil  courts  of 
criminal  jurisdiction  the  judges  are  understood  to  be  counsel  for  the  person 
accused,  the  judge-advocate  in. courts-martial  shall  do  justice  to  the  cause  of 
the  prisoner,  by  giving  full  weight  to  every  circumstance  or  argument  in  his 
favor;  shall  bring  the  same  fairly  and  completely  into  the  view  of  the  court; 
shall  suggest  the  supplying  of  all  omissions  in  the  leading  of  exculpatory 
evidence;  shall  engross  in  the  written  proceedings  all  matters  which,  either 
directly  or  by  jiresumption,  tend  to  the  prisoner's  defense;  and,  finally,  shall 
not  avail  himself  of  any  advantage  which  superior  knowledge  or  ability  or 
his  influence  with  the  court  may  give  him  in  enforcing  the  conviction, 
rather  than  the  acquittal,  of  the  person  accused.' 

Opinions  in  Matters  of  Law. — The  Articles  of  War  arc  silent  oti  the 
subject  of  the  duty  of  the  judge-advocate  to  assist  the  court  with  his  opinio-i 
or  advice  as  to  matters  of  law  arising  during  the  course  of  the  trial.     It  is 

*  Ninetieth  Article  of  War. 

*  Dip.  J.  A.  Gen.,  458,  par.  12.     See,  also,  note  A  post. 
'  Maconih.  §  176. 

*  Ihid.  'riie  jii'Ige-advocate  shduld  also  advise  the  accused,  especially  when  iarnorant 
and  unassisted  by  counsel,  of  liis  riirhts  in  delViisi-  — ]>articularly  of  his  rieht,  if  it  exists 
in  the  case,  to  plead  the  statute  of  limitations,  und  of  liis  ritrht  to  testify  in  hi«  own 
behalf.  .\  failure  to  do  so,  however,  will  not  affect  the  legal  validity  of  the  proceediners; 
though  if  it  appear  that  the  accused  was  actually  ignorant  of  these  rights,  the  omission 
may  be  ground  for  a  mitigation  of  sentence.     Dig.  J.  A.  Gen.,  462,  par.  28. 


38  MILITARY  LAW. 

strictly  the  proper  practice  for  a  judge-advocate  not  to  give  his  opinion  upon 
u  point  of  law  arising  upon  a  military  trial  unless  the  same  may  be  required 
by  the  court.  This  practice,  however,  is  often  departed  from,  and  the 
opinions  of  judge-advocates,  suitably  tendered,  are  in  general  received  and 
entertained  by  the  court  without  objection,  whether  or  not  formally  called 
for.  But  where  the  court  does  object  to  the  giving  of  an  opinion  by  the 
judge-advocate,  he  is  not  authorized  to  attempt  to  give  it,  and  of  course  not 
authorized  to  enter  it  upon  the  record.' 

Counsel  to  Assist  Judge- Advocate. — In  cases  of  exceptional  difficulty  and 
public  importance  civil  counsel  were  formerly  not  unfrequently  retained  to 
assist  the  judge-advocate.  Since  the  creation,  however,  of  the  office  of 
Judge-advocate  General  of  the  Army,  and  of  the  corps  of  judge-advocates, 
by  the  Act  of  July  17,  18G2,  such  instances  have  been  of  the  rarest  occur- 


rence.^ 


Counsel  for  the  Accused. — An  officer  or  soldier  put  upon  trial  before  a 
rourt-martial  is  not  entitled  as  of  right  to  have  counsel  present  with  him  to 
assist  him  in  liis  defense,  but  the  privilege  is  one  which  is  almost  invariably 
conceded;'  and  where  it  is  unreasonably  refused,  such  refusal  may  constitute 
ground  for  the  disapproval  of  the  proceedings.  A  court-martial,  however, 
is  not  required  to  delay  an  unreasonable  time  to  enable  an  accused  to 
provide  himself  with  counsel.'' 

>  Dio-  J.  A.  Gen..  4.")9,  par.  15.  Whether  the  fact  that  the  opinion  was  offered  and 
obiected'to  by'the  court  shall  be  entered  upon  the  record,  is  a  matter  for  the  c.  urt  alone 
to  decide.  It  is,  however,  certainly  the  better  i)ractice  that  all  the  pnceedings,  even 
those  that  are  irrefjular,  w^hicli  transpire  in  connection  with  the  trial,  should  be  set  out 
In  the  record  for  the  inspection  of  the  reviewing  authority.     Ihid. 

It  "  is  understood  to  be  his  dutv  to  explain  any  doubts  which  may  arise  in  the  course 
of  their  deliberations,  and  to  prevent  any  irregularities  or  deviations  from  the  regular 
form  of  proceeding.  For  it  is  to  be  observe.l  tbat,  in  all  matters  louching  the  trials  of 
crimes  bv^  courts-martial,  wherever  the  military  law  is  silent  the  rules  of  the  common 
law,  as  generallv  recognized  and  enforced  throughout  the  Union,  must  of  necessity  be 
resorted  to."  Mac=.ml^  §  174.  See,  also,  Ives,  2.3?;  Benet  70,  1  Winthrop,  263  ;  Kennedy, 
Duties  of  Judge-Advocates,    123  ;  De  Hart,  324-C  ;  Tytler  3o4,  5  ^  .      ,  .     ^.. 

'■  Dicr   J    A    Gen.    811.     T'nder  the  existing  hnv,  indeed,  winch  is  contained  in  Section 

361  of  The  Revised  Statutes,  counsel  could  b<,  emnloyed  (at  the  public  expense)  for  this 

purpose  onlv  throucrh  the  Department  of  .Justice  upon  the  request  or  recommendation  of 

le  Secretarv  of  War     Ihvl.    The  detail  of  a  commissioned  officer  for  this  purpose,  though 

frequent. -is  warranted  bv    precedent,  and    is  within  the  authority  "^  the  convening 

officej  in  cases  in  which,  in  his  opinion,  such  a  course  is  either  necessary  "J  de^ir^l^lf , 

3rompare  on  this  snbiect.  People  vs.  Daniell,  6  Lansing,  44;  P«"Pl«  ^  ; ^^^"  ^//^7,' 
.5.5  X  York.  31.  The  restriction  upon  the  admission  of  counsel  for  the  *^^<i"^«^\'"  ^'^^^^ 
martial  trials  is  said  by  Clode  to  have  had  its  origin  in  the  c'JV""f  n«Ps  It  mav 
tribunals,  as  such,  were  without  power  to  award  the  payment  of  legal  ^^P«  ^^^^r  J^^s 
also  be  traced  to  the  inherent  power  of  courts  of  I'mred  jur.sd  ction  to  P/e^^'^f  "^'^J^ 
for  their  own  procedure  f'lode,  Militarv  Forces,  169:  ibi,!..  Military  Law,  120;  see,  also, 
Jvilier  m  Hicks,  B.  &  Adol.,  668;  Tyiler,  250  In  the  British  service-  t»ie  appearan  e 
of  counsel,  in  behalf  of  both  prosecution  and  defense,  ,s  regulated  by  ^^''^'''"Jf  .^^JV; 
Army  Act  of  1881,  subject,  however,  to  tlie  provisions  of  the  Rules  of  Procedure  in 
respect  to  the  rights  and  duties  of  counsel*  ,    .       .,  ■  i      ^,.„=;oi 

♦  Dig.  .J.  A.  Gen.,  311,  par.  1.    While  reasonable  facilities  for  procuring  such  counsel 

*S^ Rules  9f>-92.  Rules  of  Procedure:  Man.  of  Mil.  Law..  6:W-042.   See,  also,  pp.  56,  472.  and  6.38-642, 
ibid. 


THE   COMPOSITION  OF  COURTS-MARTIAL.  39 

Counsel  for  Enlisted  Men. — It  is  required  by  the  Army  Regulations  that 
the  comniaudiug  ollicer  of  a  post  at  whicli  a  general  court-ruartial  is  con- 
vened shall,  "  at  the  request  of  any  prisoner  who  is  to  be  arraigned,  detail  as 
counsel  for  liis  defense  a  suitable  officer,  one  not  directly  responsible  for  the 
discipline  of  an  organization  serving  tliereat,  nor  acting  as  a  summary  court. 
If  there  be  no  such  officer  available,  the  fact  will  be  reported  to  the  appoint- 
ing autliority  for  action.  An  officer  so  detailed  should  perform  such  dnties 
as  usually  devolve  upon  counsel  for  defendant  before  civil  courts  in  criminal 
cases.  As  such  counsel  he  should  guard  the  interests  of  the  prisoner  by  all 
lioiiorable  and  legitimate  means  known  to  the  law.' 

as  lie  may  de.sire  slioukl  be  afforded  an  accused,  his  claim  must  be  regarded  as  subordinate 
to  tlie  interests  of  tbe  service.  Thus  where  an  accused  ollicer  a])plied  to  the  department 
coniinander,  who  bad  convened  the  court,  to  authorize  a  particular  otficer  whom  he 
desired  as  counsel  to  act  in  that  (-apacitv,  and  this  officer  could  not  at  the  time  be  spared 
from  his  regular  duties  without  material  jjrejudice  to  the  public  interests,  held  that  the 
commander  was  justified  in  denying  the  a})plication,  and  further  that  the  validity  of  tlie 
subsequent  proceedings  and  sentence  in  the  case  was  not  affected  by  such  denial.'  Ibid 
312,  par.  2. 

An  application  by  an  accused  officer  to  be  furnished,  at  the  expense  of  tbe  United 
fitates,  with  civil  counsel  to  defend  him  on  his  trial  by  court-martial  remarked  upon  as 
unprecedented  and  not  to  be  entertained.  Par.  968,  A.  li.,  1895,  relates  to  no  such  a  ca.se. 
No  authority  exists  for  the  payment  by  the  United  States  of  civil  counsel  employed  bv 
an  officer  to  defend  him  on  his  trial  by  court-martial.     Ibid.,  312,  par.  6. 

'  Paragraph  926,  Army  Regulations  of  1895.  Held  that  G.  O.  29  of  1890,  providing 
for  tiie  detail,  by  the  commander  of  a  ])ost  at  which  a  general  court-martial  is  ordered  to 
.sit,  of  a  suitable  officer  of  his  command  to  act  as  counsel  for  prisoners  to  be  arraigned, 
if  requested  by  them,  was  not  to  be  construed  as  sanctioning  the  detail  or  voluntarv 
a})pearauce  of  a  post  commander  himself  in  such  capacity  at  his  own  post.  Ibid., 'il2, 
}>ar.  5.  The  phrase  "  one  not  directly  responsible  for  the  discipline  of  an  organization 
serving  thereat  "  has  been  given  an  authoritative  interpretation  in  Circular  No.  8, 
A.  (J.  O.  of  1894  :  "No  officer  directly  responsible  for  the  discipline  of  an  organization 
or  organizations  under  his  command — as  the  commanding  officer  of  a  post,  band,  com- 
pany, battalion,  squadron,  or  regiment — nor  the  trial  officer  of  a  summary  court,  will  be 
regarded  as  a  '  suitable  '  officer  under  the  provisions  of  General  Orders  No.  29,  1890, 
A.  (i.  O.,  forthisduty  at  the  post  where  he  is  stationed  "  Par.  Ill,  Circular  No.  8,  A.  (J.  0., 
1894.     See,  also.  Circular  No.  5,  A.  G.  O.,  1894,  and  Manual  for  Courts-martial,  p.  25. 

The  Manual  for  Courts-martial,  which  is  tlie  authoritative  guide  for  the  Army  in 
court-martial  practice,  prescribes  that  an  officer  detailed  as  counsel  for  a  soldier  before  a 
court-martial  should  guard  the  interests  of  the  accused  by  all  honorable  and  legitimate 
means  known  to  the  law.  T'nless  this  is  understood  "to  be  subject  to  an  important 
modification  it  will  ha  misleading.  The  modification  is  that  he  must  not  do  anything 
inconsistent  with  military  relations. 

It  is  necessary  tliat  discipline  should  be  maintained.  Discipline  is  founded  on  respect 
for  authority.  The  position  of  counsel  for  the  accused  does  not  give  an  officer  the  right 
to  disregard  the  ol)ligations  arising  out  of  this  relation.  The  tendency  to  go  too  far  in 
assimilating  the  court-martial  trial  to  the  ordinary  criminal  trial  is  noticeal)le  and  should 
not  be  enc  uiraged.  It  would  be  decidedly  harmful,  and  unless  the  Manual  is  understnod 
as  indicated  it  would  be  a  step  in  the  wrong  <lirectinn.  It  is  tlierefore  the  dutv  of  an 
officer  a-signed  as  counsel  for  an  accused  person  to  conduct  the  defense  not  onlv  with 
a  due  regard  for  autliority,  but  within  the  well-understood  limits  pre.scribed,  in  the 
interest  of  discipline,  by  the  established  procedure  of  courts-martial.  It  can  never  be 
necessary,  and  it  certainly  will  never  be  ju-^tifiable,  for  tbe  counsel  for  tlie  accused  to  lay 
aside  his  obligation  to  respe(!t  authority,  and  his  position  will  not  give  him  immunity  if 
he  does  it.*     (Judge-.\dvocate  General.) 


*  See,  also,   for  a  (lefliiition   of   tlif   ilntit's  of  an  officer  assi^neil  as  counsel,  tlie   para^jrapl    ">d 
page  38,  ante,  relatiug  to  the  duty  of  the  judge -advocate  as  counsel  for  ilie  accused. 


40  MILITARY  LAW. 

The  privilege  of  being  represeuted  by  counsel  does  not  apply  in  cases 
tried  by  inferior  courts.' 

Au  accused,  prior  to  arraignment,  even  if  in  close  arrest,  sliould  be 
allowed  to  have  interviews  with  such  counsel,  military  or  civil,  as  he  may 
have  selected.  So,  his  counsel  should  l)e  permitted  to  have  interviews  with 
anv  accessible  military  person  whom  it  may  be  proposed  to  use  as  a  material 
witness,  or  whose  knowledge  of  facts  may  be  useful  to  the  accused  in  pre- 
paring for  trial.* 

A  military  court  has  no  authority  (analogous  to  that  sometimes  exercised 
by  civil  courts  in  criminal  cases)  to  assign  counsel  to  an  accused  unprovided 
witli  counsel.  Xor  can  such  a  court  excuse  one  of  its  members  to  enable 
him  to  act  as  counsel  for  an  accused.' 

KEPORTERS,  IXTERPRETEKS,  AND  CLERKS. 

Reporter,  How  Appointed. — Section  1203  of  the  Revised  Statutes  pro- 
vides that  "  the  judge-advocate  of  a  military  court  shall  have  power  to 
appoint  a  reporter,  who  shall  record  the  proceedings  of,  and  testimony  taken 
before,  such  court,  and  may  set  down  the  same,  in  the  first  instance,  in 
shorthand.  The  reporter  shall,  before  entering  upon  his  duty,  be  sworn 
or  affirmed  faithfully  to  perform  the  same."  * 

The  power  conferred  by  this  statute  is  vested  exclusively  in  the  "  judge- 
advocate,"  and  cannot  be  exercised  by  the  court;  it  should  be  resorted  to» 
however,  only  in  an  important  case.'" 

1  ]S::i;uial  for  Courts-martial,  25,  par.  1,  note. 

•J  Dii,^.  J.  A.  Gen.,  312,  par.  3. 

*  Ibid.,  par.  4. 

•»  The  statute  does  not  indicate  by  whom  tlie  reporter  sliall  be  sworn.  In  practice  be 
is  sworn  by  the  judge-advocate;  a  form  of  oath  being  prescribed  in  the  Manual  for 
Courts-martial.  If  tbe  same  party  is  employed  as  a  reporter  for  more  tban  one  case, 
he  should  properlv  be  sworn  anew  in  each  case. 

When  a  reporter  is  employed  under  Section  1203,  Revised  Statutes,  he  shall  be  paid, 
upon  tbe  certificate  of  the  judge-advocate,  not  to  exceed  $1  an  hour  for  the  time  occupied 
in  court  by  himself  or  a  competent  assistant  necessarily  employed  for  him  by  the  judge- 
atlvocate,  and  15  cents  per  100  words  for  the  first  and  5  cents  per  100  words  for  each 
additional  copy  of  the  transcript  of  notes  and  of  exhibits  copied;  and  in  case  the  court  is 
held  more  than  ten  miles  from  the  place  of  employment  of  himself  and  assistants  they 
shall  each  be  allowed  mileage  over  the  shortest  usually  traveled  route  at  the  rate  of  8 
cents  per  mile  going  to  the  place  of  holding  the  court,  and  $3  a  day  for  expenses  while 
necessarily  kept  by  the  judge-advocate  away  from  the  place  of  employment.  Reporters 
are  employed  by  tiie  judge-advocate  and  are  paid  by  the  Pay  Department,  at  tbe  rates 
herein  named,  upon  tbe  certificate  of  the  judge-advocate  that  the  services  charged  for 
have  been  rendered.     (Par.  1063,  A.  R.  1901.) 

The  only  authority  for  the  employment  of  reporters  for  courts-martial  is  that  contained 
in  Section  1203,  Revised  Statutes,  which  authorizes  the  judge-advocate  of  a  military  court 
to  appoint  a  reporter  for  sucli  court.  In  view  of  this  statute,  Jield  that  the  ajipointment, 
by  a  judge-advocate  on  the  staff  of  a  department  commander,  of  a  person  to  act  as  reporter 
for  all  the  courts  to  be  convened  in  the  department,  was  in  contravention  of  law  and  of 
no  effect.     Dig.  J.  A.  Gen.,  461,  par   23. 

No  person  in  the  military  or  civil  service  of  the  Government  can  lawfully  receive  extra 
compensation  for  clerical  duties  performed  for  a  military  court.  (Par.  960,  A.  R.  1895.) 
See,  also.  Manual  for  Courts-martial.  T>t'.  25.  26. 

*  Par.  958,  Army  Regulations.  1895.  The  employment  of  a  stenographic  reporter, 
under  Section  1203,'Revised  Statutes,  is  authorized  for  general  courts  only,  and  in  cases 


THE  COMPOSITION  OF  COURTS  MARTIAL.  41 

Interpreters. — Interpreters  to  courts-martial  are  paid  by  the  Pay  Depart- 
ment upon  the  certiticato  of  tlie  judge-advocate  that  the^were  emj)loyed  by 
order  of  tlie  court.  They  will  be  allowed  the  pay  and  allowances  of  civilian 
witnesses.' 

Interpreters  ami  reporters  are  officers  or,  strictly  speaking,  employees  of 
the  court,  and  should  be  sworn  before  entering  upon  the  performance  of  their 
duties.' 

Clerks. — There  is  no  authority  for  the  employment  of  a  civilian  clerk  for 
a  court-martial  other  than  the  "reporter"  authorized  by  Sec.  1203,  Rev. 
Sts.,  aiul  referred  to  in  par,  958  of  the  Army  Regulations  of  1895.  An 
enlisr.od  man  may  be  detailed  as  such  clerk  under  par.  958.  A  court- 
martial,  member  of  court,  or  judge-advocate  cannot  of  course  lawfully  com- 
municate to  a  reporter  or  clerk  the  finding  or  sentence  of  the  court  by 
allowing  him  to  record  the  same.  Before  proceeding  to  deliberate  upon  its 
finding,  the  court  should  require  the  reporter  or  clerk,  if  it  has  one,  to 
withdraw,  Pmt  the  fact  that  the  finding  or  sentence  or  both  may  have  been 
made  known  to  the  reporter  or  clerk  of  a  court-martial  cannot  affect  the 
legal  validity  of  its  proceedings  or  sentence.' 

where  the  convening  authority  considers  it  necessary.  The  convening  autliority  uiav 
also,  when  necessary,  authori/.e  tlie  detail  of  an  enlisted  man  to  assist  the  judge- advocate 
of  a  general  court  in  preparing  the  record. 

'  Par.  961,  A.  K.  1895.  That  a  member  of  the  court  acted  as  interpreter  on  a  trial 
Jield  an  irregularity,  but  one  which  did  not  affect  the  legal  validity  of  the  ))roceedings. 
Dig    I.  A.  Ueu.,  4o4,  par.  1. 

Where  the  charges  against  a  ])rivate  solaier  were  preferred  by  the  caj)tain  of  his 
com])any,  who  also  acted  not  only  as  a  prosecuting  witness  but  as  interpreter  on  the  trial, 
held  a  grave  irregularity  which  might  well  induce  a  disapproval  of  the  proceedings 
and  sentence  unless  it  quite  clearly  appeared  that  no  injustice  had  been  done  the 
accused*     Ihid.,  par.  2. 

■^  For  form-;  of  oatlis,  see  Manual  for  Courts  martial,  p.  29. 

'  l>ig.  J.  A.  (ten.,  264,  par.  1.  In  view  of  tlie  interjjretation,  by  successive  Attorneys- 
General, f  of  the  term  "other  constant  labor,"  employed  in  the  Act  of  March  2,  1819,  (the 
original  of  the  provision  of  July  13,  1866,)  as  including  clerical  service,  and  of  the  con- 
tinued practice  of  the  government  in  accord  witli  such  interpretation,  htld  that  enlisted 
men  detailed  as  clerks  of  courts-martial  miglit  7)r()per]y  be  regarded  as  entitled,  for  con- 
stant labor  as  such  "of  not  less  than  ten  days'  duration,"  to  the  extra-duty  pay  of  twenty 
cents  per  diem.  But  held,  in  view  of  the  positive  prohibition  of  Sec.  1765,  Kev.  Sts., 
that  a  soldier  could  not  legally  be  allowed  any  additional  compensation  for  such  service 
further  or  other  than  such  laborer's  pay  :  and  this  although  at  the  time  of  acting  as 
flerk  he  was  on  leave  of  absence.     Iliid.,  404,  par.  4 

Held  that  a  claim  by  an  officer  to  l)e  allowed  extra  compensation  for  services  rendered 
by  hitn  as  clerk  to  a  general  court-martial  of  which  he  was  the  junior  member  was 
whoUv  without  sanction  in  usage,  and  moreover  could  not  be  allowed  without  a  violation 
of  Sec.  1765,  Rev.  Sts.     Ibid.,  264,  par.  2. 

*  Tliat  iin  important  witness  on  a  trial  should  not  properly  be  permitted  to  interpret  the  testimony 
of  another  such  witness  is  remarked  in  G.  C.  M.  O  'J4,  Dcpt.  of  Texas,  1875. 
t  i  Opin.  Att.-Gen.,  706;  3  ibid.,  116;  4  ibid.,  425;  10  ibid.,  473, 


CHAPTER   V. 

THE  JURISDICTION   OF   COUKTS-MARTIAL. 

Sources. — The  jurisdiction  of  a  court  is  it  power  to  try  a  case.'  Juris- 
diction is  conferred,  as  to  the  State  courts,  by  the  common  law,  or  by 
statutes  of  the  State  by  whose  autliority  tliey  are  created  and  in  whose 
behalf  they  act;'  that  of  the  several  Federal  courts  is  conferred  by  the  Con- 
stitution, or  by  laws  made  in  pursuance  thereof.  The  peculiar  jurisdiction 
exercised  by  courts-martial  is  conferred  by  the  Articles  of  War,  and  by  other 
enactments  of  Congress  of  similar  character  luul  in  pursuance  of  the 
authority  conferred  upon  that  body  by  the  Constitution  to  "  make  rules  and 
regulations  for  the  government  of  the  laud  and  naval  forces."  ' 

Military  Jurisdiction. — Courts-martial,  as  has  been  seen,  are  courts  of 
limited  jurisdiction,  and  as  such  their  records  must  show  affirmatively  that 
they  have  authority  to  hear  and  determine  cases  coming  before  them  for 
trial.  The  jurisdiction  of  courts-martial  is  not  only  statutory,  but  is  also 
exdusivelij  criminal  in  character,  and  such  tribunals  are  entirely  without 
power  to  entertain  civil  causes,  or  to  take  jurisdiction  over  property  or 
property  interests  of  any  kind,  or  to  make  or  enforce  decrees  respecting  its 
possession  or  ownership.  Their  jurisdiction  is  exclusive  as  to  what  are  known 
as  military  offenses,  that  is,  offenses  created  by  the  Articles  of  War,  and  by 
other  enactments  of  Congress  of  similar  character." 


•  Rhode  Island  vs.  Mass..  12  Pet.,  657  ;  Mo.  vs.  Lewis,  101  IJ.  S.,  22. 

^  Ex  parte  DoUman.  etc.,  4  Cr.,  75;  Sheldon  m.  Sill,  8  How.,  441  ;  Boswell  vs.  Otis.  9 
How.,  336  ;  Hose  rs.  Himely,  4  Cr.  241. 

s  The  court-martial  having  jurisdiction  of  the  person  of  the  accu.sed  and  of  the  offense 
charj^ed,  and  having:  acted  within  the  scope  of  its  lawful  ])ower,  its  decision  and  sentence 
canncjt  be  reviewed  or  set  as'de  hv  the  civil  courts  bv  writ  of  habeas  corpus  or  otherwise. 
.Johnson  vs.  Savre,  1.58  IT.  S.,  109.  118;  Dynes  ra."  Hoover,  20  How.,  65.  82:  Ex  parte 
Reed,  100  U.  S.,  13;    Ex  parte  Mason,   105  U.  S.,  696;  Smith  vs.  Whitney,  116  U.  S., 

167.  177-179. 

*  Courts-martial  (thoufrh,  within  their  scope  and  province,  authoritative  and  inde- 
pendent tribunals)  are  bodies  of  exceptional  Jind  restricted  jiowers  and  jurisdiction  ;  their 
cognizance  beinj,'  confined  to  the  distinctive  classes  of  offenses  reco^^nized  by  the  military 
c<jde.  Their  jurisdiction  is  criminal,  their  function  beinfr  to  assitrn,  in  proper  cases, 
punishment ;  they  have  no  authority  to  adjiidtre  damaires  for  personal  injuries  or  private 
wrongs.*  Dig.  .l".  .\.  Gen.,  321.  par.  1  ;  Ex  parte  Wilkins.  8  IVters  209;  Barrett  rx. 
Crane,  16  Verm.,  246;  Brooks  vs.  Adams,  11  Pick.,  441  ;  Brooks  vs.  Davis,  17?V7.,  148: 
Brooks  vs.  Daniels,  22  id..  498  ;  Washburn  rs.  Phillips,  2  Met.,  2!i6  ;  Smith  vs.  Shaw.  12 
Johns  ,  257  ;  Mills  vs.  Martin,  19  id.,  7  ;  In  Matter  of  Wri<rht,  ?,A  How.  Pr.,  221  :  Dutfieid 


«  See  2  Greenl.  Ev.,  sees.  471,  476  ;  United  States  v.  Clark,  6  Otto.  40  :  Warden  r.?.  Bailey,  4  Taunt.,  78. 

42 


TUE  JURISDICTION  OF   COURTS  MARTIAL.  ^'-^ 

Concurrent  Jurisdiction. — From  the  nature  and  source  of  their  res})ective 
jurisdictions,  civil  and  military  courts  can  never  have  concurrent  jurisdiction 
in  the  strict  sense  of  the  term.  The  same  act  or  omission,  however,  may 
give  rise  to  both  a  military  and  a  civil  trial,  but  the  offense  in  each  case  is 
distinct  and  separate,  one  being  created  by  the  Articles  of  War  and  the 
other  by  the  common  law,  or  by  statute  in  the  State  or  district  within  whose 
territorial  limits  it  was  committed.' 

Classification.  —  The  ({uestion  of  jurisdiction  as  respecting  military 
tribunals  may  be  regarded  from  several  points  of  view,  accordingly  as  it 
relates  (1)  to  place,  (2)  to  time,  (3)  to  persons,  or  (4)  to  offenses.  These 
aspects  of  the  subject  will  be  discussed  in  the  order  named. 

1.  Jurisdiction  as  to  Place. — -The  jurisdiction  of  cuurts-martial,  not 
bein'T  restricted  in  point  of  territorial  operation,  extends  to  every  part  of 
the  territory  of  the  United  States  and,  as  to  military  persons,  covers  all 
military  offenses  committed  by  them,  whether  within  or  beyond  such  terri- 
torial limits.     In  so  far,   therefore,   as  mere  jurisdiction  is  concerned,  it 


vs.  Smith,  3  Ser-rt.  &  Rawle,  590  ;  Bell  vs.  Tooley,  12  Iredell,  605  ;  State  vs.  Stevens,  2 
McCord,  32;  Miller  i-s.  Seaie,  2  W.  Black.,  1141  ;  6  Opins.  Att.-Uen.,  425. 

"A  court-martial  is  a  co.irt  of  limited  and  special  jurisdiction.  It  is  called  into 
existence,  by  force  of  express  statute  law,  for  a  special  purpose  and  to  perform  a  par- 
ticular dutv";  and  when  the  ol)ject  of  its  creation  is  accomplished  it  ceases  to  exist.  ...  If, 
in  its  proceedini,'s  or  sentence,  it  transcends  tlie  limit  of  its  jurisdiction,  the  members  of 
the  court  and  the  oificer  who  executes  its  sentence  are  trespassers,  and  as  such  are  an- 
swerable to  the  party  injured,  in  damages,  in  the  courts."     3  Greenl.  Ev.,  sec.  470. 

Courts-martial  are  no  part  of  the  judiciary  of  the  United  States,  but  simply  instru- 
mentalities of  the  executive  power.  They  are  creatures  of  orders  ;  the  power  to  convene 
them,  as  well  as  the  power  to  act  upon  their  proceedings,  being  an  attribute  of  command. 
But,  though  transient  and  summary,  their  judgments,  when  rendered  upon  subjects 
within  tlieir  limited  jurisdiction,  are  as  legal  and  valid  as  those  of  any  other  tribunals, 
nor  are  the  same  subject  to  be  appealed  from,  set  aside,  or  reviewed  by  the  courts  of  the 
United  States  or  of  any  State.     Ibid.,  313,  ])ar.  1. 

See.  al.so.  Dvnes  vs.  Hoover,  30  Howard,  79  ;  Kr  parte  Vallandigham,  1  Wallace.  243  ; 
Wales  OS.  Wiiinicv,  114  U.  S.,  5G4  ;  Fugitive  Slave  Law  Cases,  1  Blatch.,  G35  :  In  re 
Bogart.  3  Sawyer.  402,  409;  .Moore  vs.  Houston.  3  S.  tS:  R.,  197;  Kx  parte  Dunbar,  14  Mass., 
392;  Brown  rs.  Wadswortli,  15  Verm.,  170;  Peoples*.  Van  Allen,  55  N.  Y.,  31  ;  Perault 
vs  Rand,  10  Hun,  222  ;  E.r  parte  Bright,  1  Utah,  148,  154  ;  Moore  vs.  Bastard,  4  Taunt., 
67  ;  6  Opins.  Att.-Oen.,  415,  425.  "  No  acts  of  military  officers  or  tribunals,  within  the 
scope  of  their  jurisdiction,  can  be  revised,  set  aside,  or  punished,  civilly  or  criminally, 
by  a  court  of  coinuion  law."  'Pyler  vs.  Pomeroy,  8  Allen.  484.  Where  a  court-martial 
has  jurisdiction,  "  its  proceedings  cannot  be  collaterallv  impeached  for  any  mere  error  or 
irregularity  committed  within  the  si)here  of  its  authority.  Ps  judgments,  when  approved 
as  required,  rest  on  tlie  same  basis  and  are  surrounded  by  tiie  same  considerations  which 
give  conclusiveness  to  the  jndirments  of  other  legal  tril)unals.  including  as  well  the 
lowest  as  the  highest,  under  like  circumstances."      PJ.r  part,'  Reed.  10  Otto,  13. 

'  A  soldier,  for  example,  assaults  his  superior  officer,  the  latter  being,  in  the  execution 
of  his  office,  at  a  militarv  post.  The  offense  committed  in  this  case  constitutes  a  viola- 
tion of  the  21st  Article  "of  War,  over  which  a  court-martial  has  exclusive  jurisdiction. 
Were  an  enlisted  man,  however,  to  tneet  a  military  superior,  under  similar  circumstances 
of  duty,  in  a  city  or  otiier,  place  without  or  beyond  the  limits  of  a  military  post,  and  to 
make  a  similar  assault  upon  him,  two  se]iarate  offenses  would  result  :  one  the  civil  offense 
of  assault  and  battery,  triable  by  a  civil  court  havinsr  a])propriate  criminal  jurisdiction, 
tlie  other  the  military  olTense  of  striking  a  superior  officer,  under  the  21st  Article  of 
War,  which  would  be  exclusively  triable  bv  court-martial.  In  neither  case  could  an 
acquittal  or  conviction  by  one  tribunal  be  pleaded  in  bar  of  atrial  before  the  other,  since 
the  offenses  are  distinct  in  each   case,  though   growing  out  of  precisely  the  same  act. 


ii  MILITARY   LA  W. 

matters  not  wliere  an  offense  has  been  committed,  so  long  as  it  is  one  over 
which  some  form  of  military  tribunal  has  jurisdiction  and  is  committed  by  a 
person  amenable  to  military  law.' 

Restriction  upon  the  Convening  Authority. — While,  as  has  been  seen, 
there  is  no  limitation  upon  the  territorial  jurisdiction  of  military  tribunals 
in  so  far  as  the  place  of  commission  of  the  offense  is  concerned,  there  are 
certain  limitations  in  respect  to  the  places  at  which  courts-martial  shall  be 
convened  by  each  of  the  several  classes  of  persons  empowered  by  law  to  con- 
stitute them.  It  may  be  said,  in  general,  that  a  convening  officer  may  con- 
vene a  court-martial  only  at  a  place  within  the  territorial  limits  of  his 
command.  Thus  the  President  of  the  United  States,  the  Secretary  of  War, 
and  the  Major-General  commanding  the  Army  may  convene  general  courts- 
martial  at  any  place  within  the  territorial  jurisdiction  of  the  United  States; 
a  department  commander  may  similarly  convene  such  courts  at  any  place 
within  his  department,  a  division  commander  within  his  division,  and  so  on. 
A  garrison  or  summary  court  may  only  be  convened  at  the  post  or  garrison 
commanded  by  its  convening  officer.  When  the  power  to  convene  a  court- 
martial  appertains  to  a  command,  as  distinguished  from  a  place, — as  to  a 
regiment  or  an  army  in  the  field,  for  example, — it  may  be  exercised  wherever 
such  command  may  lawfully  be  operating  when  the  necessity  for  the  trial 
arises. 

2.  Jurisdiction  in  Point  of  Time. — As  courts-martial  do  not  depend 
upon  a  state  of  war  for  their  jurisdiction,  save  in  respect  to  the  crimes  men- 
tioned in  the  58th  Article  and  to  a  limited  number  of  offenses  which  pertain 
solely  to  a  state  of  war,  which  do  not  exist  in  time  of  peace,  and  which  cease 
to  exist  with  the  termination  of  hostilities  or  with  the  treaty  of  peace,  the 
jurisdiction  of  military  courts  is  only  restricted  in  point  of  time  by  the 
operation  of  statutes  of  limitation. 

Statutes  of  Liynitatlon. — Statutes  of  limitation,  in  criminal  practice,  are 
enactments  which,  if  pleaded  by  an  accused,  operate  to  deprive  the  courts 
of  power  to  try  certain  offenses  when  a  period  of  time,  expressly  stated 
in  the  statute,  has  elapsed  since  their  commission.  These  statutes  are 
not  prohibitorv  as  to  jurisdiction,  but  constitute  matter  of  defense  which, 
to  become  effective,  should  be  pleaded  and  proved.'  "  By  pleading  the 
general  issue   the   accused   is   assumed    to   waive   the  right   to   plead  the 


Tliis  double  jurisdiction,  or  liability,  is  not  peculiar  to  the  practice  of  courts-martial, 
since  it  may  be  created  by  the  criminal  laws  of  the  United  States  and  those  of  one  of  the 
States  of  i]\f  Union.  A  sale  of  liquor  without  a  Federal  license  in  a  State  in  which  the 
sale  of  liquor  is  prohibited  by  law  may  constitute  a  penal  offense  under  the  prohibitory 
law  of  the  State  and,  at  the  same  time,  an  offense  against  the  revenue  laws  of  the  United 
States. 

'  Disr.  J.  A   Gen.,  322,  par.  2. 

■  Manual  for  Courts-martial,  p.  32;  Digf.  J.  A.  Gen.,  124,  par.  12;  /n  r«?  Bogart,  2 
Sawver,  397;  In  rp  White,  17  Fed.  Rep.,  723;  In  re  Davison,  21  ibid.,  618;  In  re  Zim- 
merman, 30  Fed.  Rep..  176;  G.  O.  22  of  1893.  And  compare  U.  S.  vi.  Cooke,  17  Wallace, 
168. 


THK  .JURISDICTION  OF  COURTS-MARTIAL.  4:5 

limitation  by  a  special  plea  in  bar;  but,  under  a  plea  of  not  guilty,  the 
limitation  niav  be  taken  advantage  of  by  evidence  showing  that  it  has  taken 
effect."' 

Liinilations  at  Mili/art/  Law. — Two  statutes  of  limitation  form  part  of 
the  military  law  of  the  United  States.  One  of  these,  which  is  embodied  in 
the  10:5d  Article  of  AVar  and  applies  to  military  offenses  generally,  provides 
that  ''  no  person  shall  bo  liable  to  be  tried  and  punished  by  a  general  court- 
martial  for  any  offense  which  appears  to  have  been  committed  more  than 
two  years  before  the  issuing  of  the  order  for  such  trial  unless,  by  reason  of 
having  absented  himself,  or  of  some  other  manifest  impediment,  he  shall  not 
have  been  amenable  to  justice  within  that  period."  ' 


'  Di-^.  J.  A.  Gen.,  124,  par.  12.  Se:\  also,  the  article  "  Pleas  in  B.r  of  Trial  "  iu  tbe 
cliiipt  r  entiilecl  TiiK  Incidents  op  the  Tiuai,. 

-  I03cl  Article  of  War.  In  view  of  this  Article  it  is  tlie  duty  of  the  Government  to 
pDst'riue  an  offender  within  a  re:isonable  time  after  the  commission  of  an  offense.  Ibid., 
par.  11. 

Bv  the  ab?;ence  referred  to  in  the  orii^nnal  Article,  in  the  term  "  unless  by  rea.sou  of 
having  absented  himself,"  is  believed  to  be  intended  not  necessarily  an  absence  from  the 
United  States,  but  an  absence  by  reason  of  a  "  fleeing  from  justice,"  analogous  to  that 
specified  in  Section  104.1,  Revised  StatiUes,  which  has  been  held  to  mean  leaving  one's 
home,  residence,  or  known  abode  within  the  district,  or  concealing  one's  self  therein, 
witli  intent  to  avoid  detection  or  punishment  for  the  offense  against  the  United  States.* 
Thus  held  tii.at,  in  a  case  other  than  desertion,  it  was  not  es.senllal  for  the  pro-secution  to 
be  prepared  to  prove  that  the  accused  had  been  beyond  the  territorial  jurisdiction  of  the 
T'nited  Sat<;S  in  order  to  save  the  case  from  the  operation  of  the  limitation.  Ibid.,  p. 
125,  par.  14. 

A  court-martial,  in  a  case  of  an  offense  other  than  desertion,  sustained  a  plea  of  the 
statute  of  limitations  in  bar  of  trial  for  the  reason  that  the  judge-advocate  could  produce 
no  evidence  to  show  that  the  accused  was  not  within  the  territorial  jurisdiction  of  the 
United  States  during  his  aijsence.  Held  that  such  showing  was  not  necessary,  and  that 
it  was  sufficient  that  the  absence  should  be  any  unauthorized  absence  from  the  military 
service  whereby  the  absentee  evades  and  for  the  time  escapes  trial.  This  construction  of 
the  term  "absented  himself  "in  the  Article  corresponds  to  that  {)laced  on  the  words 
"  fleeing  from  justice  "  as  used  in  the  statutes  of  the  United  States  to  designate  those 
whom  the  statutes  of  limitation  for  the  prosecution  of  crimes  do  not  protect.  Ibid., 
12"),  par.   15, 

It  is  tjuile  clear  that  any  person  who  takes  himself  out  of  the  jurisdiction,  with  the 
intention  of  avoiding  being  brought  to  justice  for  a  particular  offen.se,  can  have  no 
benefit  of  the  limitation,  at  least  when  i)rosecuted  for  that  offense  in  a  court  of  the 
United  States.  ...  A  person  fleeing  from  the  justice  of  his  country  is  not  sui)posed 
t  >  have  in  mind  the  object  of  avoiding  the  process  of  a  particuhir  court,  or  the  question 
whether  he  is  amenable  to  the  justice  of  the  nation  or  of  the  State,  or  of  botli.  Proof  of 
a  specific  intent  to  avoid  either  could  seldom  be  had,  and  to  make  it  an  essential  requisite 
w.iuld  defeat  the  whole  object  of  the  provision  in  question.  Streep  vs.  United  States, 
160  U.  S.,  l'J8;  United  States  vs.  Smith,  4  Dav,  121,  125;  Roberts  vs.  Reilly,  IIG  U.  S., 
80,  9T. 

The  mere  fact  that  the  offense  was  coi'cealed  by  the  accused  and  remained  unknown 
to  the  military  a  '.thorities  for  more  than  two  years  constitutes  no  "  impediment"  in  the 
sense  of  the  Article.      Dig.  Opin.  J.  A.  Gen.,  123,  par.  5. 

A  mere  allegation  in  a  specification  to  the  effect  that  the  whereabouts  of  the  offender 
was  unknown  to  the  military  authorities  during  the  interval  of  more  than  two  years 
which  had  elapsed  -ince  the  offense  is  not  a  good  averment  of  a  "  manifest  impetliment  " 
in  the  sense  of  the  Article.     Ibid.,  par.  6. 

The  prohibition  of  the  Article  relates  only  to  prosecutions  before  general  courts-martial; 
it  does  not  apply  to  trials  by  inferior  courts  So,  courts  of  inquiry  may  be  convened 
without  regard  to  the  period  which  has  elapsed  since  the  date  or  dates  of  the  act  or  acts 

*  U.  S.  r.<.  OBrieu.  i  Dillon.  .3SI;  U.  S.  is.  White.  5  Cranch  C.  C,  39.  73;  Gould  &  Tucker.  Notes  on 
Revised  Statutes.  .Jt'.i. 


46  MILITARY  LAW. 

Statute  of  Limitntio7iS  iyi  Desert ioji. — The  other,  subsequently  enacted, 
applies  to  the  offense  of  desertion  in  time  of  peace  only,  and  provides  that 
*'  no  person  shall  be  tried  or  punished  by  a  court-martial  for  desertion  in 
time  of  peace  and  not  in  the  face  of  an  enemy,  committed  more  than  two 
years  before  the  arraignment  of  such  person  for  such  offense,  unless  he  shall 
meanwhile  have  absented  himself  from  the  United  States,  in  which  case  the 
time  of  his  absence  shall  be  excluded  in  computing  the  period  of  the  limita- 
tion: provided  that  said  limitation  shall  not  begin  until  the  end  of  the 
term  for  which  said  person  was  mustered  into  the  service."  ' 

3.  Jurisdiction  as  to  Persons. — Amenahiliiy  in  General. — As  the  ame- 
nability of  an  individual  to  military  law  involves  the  temporary  surrender  of 
a  part  of  his  civil  rights,  which  are  placed  in  abeyance  during  the  period  of 
his  military  service,  and,  in  addition,  the  voluntary  acceptance  of  certain 
obligations  to  which  citizens,  as  such,  are  not  subject,  it  follows  that  no 
person  can  be  subjected  to  military  jurisdiction  without  his  consent  as 
evidenced  by  his  voluntary  entrance  to  the  military  service,  nor,  save  in  a 
limited  number  of  cases  presently  to  be  explained,  can  he  be  made  amenable 
to  such  jurisdiction  without  the  express  authority  of  law.  For  the  reasons 
thus  stated,  military  laws  are  always  strictly  construed  as  to  those  clauses 
which  are  calculated  to  subject  to  their  operation  individuals  who  are  in  no 
way  connected  with  the  military  establishment. 

To  What  Persons  Applicable. — Military  law  is,  in  general,  applicable  to 
military  persons  alone.  The  following  classes  of  persons  become  subject  to 
military  jurisdiction  by  their  voluntary  entry  into  the  military  service  either 
by  enlistment  or  appointment:  (a)  the  officers  and  enlisted  men  of  the 
regular  and  volunteer  forces;^  (b)  the  militia  when  called  into  active  service 
by  the  President  to  execute  the  laws  of  the  Union,  to  suppress  insurrections, 
or  to  repel  invasions.'  In  addition  to  the  classes  above  named,  which  con- 
stitute the  military  establishment  of  the  United  States,  Congress  has,  by 
several  statutes,  subjected  other  classes  of  persons  to  military  jurisdiction, 
but  under  conditions,  as  will  presently  be  seen,  which  operate  to  create  a 
doubt  as  to  the  validity  of  the  enactments  in  question."  Under  this  head  fall : 
(c)  certain  civilians  in  time  of  war;"  (d)  the  inmates  of  the  Soldiers'  Home* 
and  (e)  of  the  several  branches  of  the  National  Home  for  Disabled  Volunteer 
Soldiers.'     These  will  be  discussed  in  the  order  named. 

to  be  investigated.*     Nor  does  tlie  rule  of  ] imitation  apjily  to  the  bearing  of  complaints 
bv  regimental  courts  under  Article  80.     J  hid.,  124,  j)ar.  10. 

'  Act  of  April  11.  1890  (26  Stat,  at  Large.  54). 

»  Sections  1094  and  1342.  Revised  Stattites  of  the  United  States;  64th  Article  of  War. 

»  Sec.  1644,  ibid  ;  64tli  Article  of  War. 

*  See  note  0,  post. 

^  45th,  46th,  and  63d  Articles  of  War;  Sec.  1343,  Kev.  Stat.  U.  S. 
6  Sec.  4824.  Rev.  Stat 

'  Sec.  4835.  if/id.;  but  see  note  2,  page  54,  post.     Sections  4824  and  4835  have  never 
heen  given  effect,  presumably  because  they  have  been  regarded  as  unconstitutional. 

*  See  6  Opin.  Att.-Gen.,  '-'.39. 


THE  .inUSDIt'TlON  OF  COiliTS  MAin'IAL.  47 

a.  The  lieyular  and  Wilunlccr  Forces  of  the  IJniled  Slates.  -ihe&Q  con- 
stitute a  part  of  tlie  military  estal)lisliment  of  the  United  States  and  are  raised 
in  accordance  with  statutes  enacted  by  Congress  in  pursuance  of  the  power 
conferred  upon  tluit  body  to  raise  and  support  armies.  The  only  distinction 
between  these  two  descriptions  of  military  force  is  that  tlie  regular  forces, 
composed  of  the  officers  and  enlisted  men  of  the  line  of  the  Army  and  of  the 
several  statT  corps,'  including  the  officers  and  enlisted  men  on  the  retired 
list,  constitute  the  pernument  military  establishment;  while  the  volunteer 
forces,  though  on  precisely  the  same  footing  as  the  regular  army  in  respect 
to  their  recruitment  and  the  appointment  and  selection  of  officers,  are  raised 
for  limited  periods  of  time,  at  the  expiration  of  which  they  cease  to  exist.' 

b.  The  Militia. — The  militia  of  the  United  States  is  a  portion  of  its 
constitutional  military  force,  and  is  composed  of  all  able-bodied  male  citizens 
of  the  respective  States  between  the  ages  of  eighteen  and  forty-five  years 
who  are  resident  therein  and  are  not  exempted  by  statute  from  the  per- 
formance of  military  duty.'  The  able-bodied  male  citizens  who,  by  enroll- 
ment under  the  statutes,"  are  thus  made  liable  to  military  service  constitute 
the  enrolled  militia  ;  *  the  organized  or  embodied  militia  is  composed  of  such 

'  The  volunteer  force  durinjj  the  late  war  was  not  a  part  of  the  militia,  but  of  the 
Army  of  the  United  States.  Though  assimilated  to  the  militia  in  some  res])ects,  as,  for 
example,  in  the  mode  of  original  appointment  of  regimental  and  company  officers,  it  was 
as  distinct  in  law  from  the  militia  as  was  the  so-called  "regular"  contingent  of  the 
Armv.*  Volu'  leer  olHcers,  once  mustered  into  the  service  of  the  United  Statf-s,  and 
while  thev  remained  in  that  service,  did  not  differ  sul)stantially  from  regular  officers  in 
their  status,  rights,  or  otherwise.  Their  tenure  of  office  was  indeed  briefer;  this,  how- 
ever, was  not  a  material  legal  distinction,  since  the  term  of  regular  officers  was  also  in 
some  cases  limited  by  statute  to  a  definite  period,  as  the  duration  of  the  existing  war. 

*  Kxeinptions  may' be  either  statutory  or  for  disability.  Statutory  exemptions  may  be 
created  by  enactments  of  Congress,  or  by  those  of  the  legislatures  of  the  several  States, 
and  are  sul>ject  to  statutory  revocation  at  the  discretion  of  the  legislative  body  which  en- 
acted them.  Com.  r«.  Bird,  12  Mass.,  443.  The  burden  of  proof  that  the  statutory  con- 
ditions of  exemption  exist  rests  upon  the  claimant,  (.'om.  th.  Smith,  13  Mass.,  316;  Thayer 
vs.  Stacy,  3  Pick.,  5()(j ;  Lees  vs.  Childs,  IT  Mass.,  351 ;  Twombly  vs.  Pinkham,  3  N.  II.,  70; 
Brush  vs.  Bogardus,  8  Johns.,  157;  Littlefield  vs.  Leland,  8  Me.,  185;  Irish  vs.  Mattison,  15 
Vt.,  381.  Exemptions  for  disability  are  based  upon  the  words  of  tiie  Act  of  May  8,  1792, 
(1  Stat,  at  Large,  171,)  which  declare  the  militia  to  be  composed  ol'  ail  "  able-bodied  male 
persons"  between  the  ages  of  eighteen  and  forty-five.  All  males  within  the  limits  of  age 
therein  prescribed  are  presumed  to  be  physically  competent  to  perform  military  duty,  and 
the  burden  of  proving  tiie  contrary  rests  upon  the  person  claiming  exemption.  Hume 
vs.  Vance,  7  Me.,  2(56 .•  Darling  m.  Bowen,  10  Vt.,  147  :  Warner  vs.  Stockwell  9  Vt.,  9. 
When  the  fact  of  physical  disability  has  been  established  as  a  (jualifying  cause,  the  con- 
sequent exemption  extends  to  such  duties  only  as  one  having  such  disability  is  unable  to 
perform.     Smilii.  Petitioner,  3  Pick.  Mass,,  386. 

*  Act  of  Mav  8,  1792.  (1  Stat,  at  Large,  271;)  Sections  1625,  1627,  Revised  Statutes. 

••  Uale?)s  Ciirrier,  4  N  H.  109  ;  Thorn  vs.  Case.  21  Me.,  393;  Hill  vs.  Turner,  18  Me., 
413.  By  far  the  greater  portion  of  the  militia  of  the  States  has  never  been  enrolled  or 
organized  ;  the  Act  of  May  8,  1792,  (Section  1625,  Rev.  Stat.)  requires  the  militia  to  be 
enrolled,  but  that  statute  has  never  been  fully  carried  into  effect,  and  it  may  be  doubted 
whether  it  is  within  the  power  of  the  Federal  (iovernment  to  require  such  enrollment  on 
the  part  of  the  several  States.  The  militia  are  of,  or  belong  to,  the  States.  They  are 
State  military  forces,  that  may  be  called  into  the  active  service  of  the  United  States,  and 

*  As  illustratiiiir  llu>  distinction  niadf  in  See.  !^.  Art  I.  of  t)ip  Constitution,  between  tlie  Army  and 
the  militia,  and  indicating  the  status  of  the  vohiuteers.  during  tlie  late  war,  as  a  part  of  the  former,  see 
Kerr  vs.  Jones,  19  Ind..  3.51 :  Wantlan  vx.  White,  id.,  471;  In  the  Matter  of  Kimball,  9  Law  Rep.,  503; 
Burroughs  vs.  PeyUui,  16  Grat  ,  4»3,  485. 


4:8  MILITARY  LAW. 

portions  of  the  eni-oUecl  militia  as  liave  been  organized  by  the  several  States 
into  companies,  battalions,  regiments,  and  other  tactical  bodies  for  purposes 
of  instruction  and  discipline. 

It  was  not  the  intention  of  the  framers  of  the  Constitution  to  vest  the 
entire  control  of  the  militia  in  the  Federal  Government,  but  to  reserve  to 
the  several  States  an  etticient  participation  in  its  management  and,  by  the 
appointment  of  its  officers,  to  maintain  such  control  over  its  organization 
and  discipline  as  would  be  calculated,  in  time  of  peace,  to  give  it  the  char- 
acter of  a  State  as  distinguished  from  a  Xational  militia.  These  objects 
were  accomiilished  by  clauses  in  the  Constitution  conferring  upon  Congress 
the  jiower  to  provide  for  its  armament,  to  prescribe  its  tactical  organization, 
and  to  secure  uniformity  in  drill  and  military  instruction;'  reserving  to  the 
several  States  the  power  to  apjioint  its  officers  and  to  control  its  organiza- 
tion, discipline,"  and  training  in  accordance  with  the  methods  prescribed  by 
Congress.' 

Active  Service  of  the  Militia. — It  is  thus  seen  that  the  militia  of  the 
several  States,  considered  as  a  military  force,  may  be  i-egarded  from  two 
points  oj.  view:  (1)  as  a  military  force  belonging  to  the  State  of  which  its 
members  are  citizens;  (2)  as  a  portion  of  the  constitutional  military  force  of 
tiie  United  States.  It  may  therefore,  in  a  proper  contingency,  be  called 
into  active  service  by  either  State  or  Federal  authority.  The  power  to  call 
the  militia  into  the  service  of  the  State  is  vested  in  some  department  of  its 
government,  usually  in  the  governor,  who  is  ex  officio  the  commander-in- 
chief  of  its  military  forces.  The  corresponding  power  to  call  a  portion  of 
the  militia  into  the  military  service  of  the  United  States  is  vested,  by 
Congressional  enactment,  in  tlie  President,  the  constitutional  commander- 
in-chief  of  its  military  forces.* 

The  Constitution  itself  prescribes  the  purposes''  for  which  the  militia 
may  be  called  out  and,  by  an  express  mention  of  those  purposes,  restricts  its 

which  the  United  States  may  make  provision  for  the  form  of  the  organization  of,  and  for 
which  it  may  prescribe  a  uniform  system  of  drill  or  discipline  and  a  uniform  armament 
and  equipment  ;  but  they  are  not  primarily  military  forces  of  the  United  States  in  the 
sense  that  the  regular  and  volunteer  forces  are  a  part  of  such  military  forces.  They  are 
a  State  militia,  any  pari  of  which  may  become  a  part  of  the  military  forces  of  the  United 
States  when  called  by  the  President  into  its  military  service.     J.  A.  G. 

'  By  the  Constitution  of  the  United  States,  the  power  to  determine  who  shall  compose 
the  militia  is  vested  in  Congress;  and  as  it  has  been  exercised  by  Congress,  a  State 
legislature  cannot  constitutionally  provide  for  the  enrollment  of  any  other  persons  in  the 
militia.     Opin.  of  Justices,  14  Oray  (Mass.),  193. 

•2  The  term  "discipline"  as  used  in  Art.  I,  Sec.  8,  of  the  Constitution,  relates  to  drill 
merely,  and  not  to  military  discipline,  in  the  sense  in  which  that  term  is  now  used  ;  the 
control  of  tlie  discipline,  properly  speaking,  of  the  militia  in  time  of  peace  being  vested 
in  the  several  States.     See,  also.  Dig.  J.  A.  Gen.,  030,  par.  9, 

5  Com.  vs.  Thaxter,  11  Mass.,  :586;  Com.  vs.  Allen,  16  Mass..  523. 

*  The  President  has  no  original  authority  over  the  militia  by  right  of  his  office.  He 
can  only  call  them  out  when  Congress  provides  for  his  doing  so  as  the  agent  of  the 
United  States  for  such  purpose.  When  the  call  is  complied  with,  the  militia  becomes 
national  militia,  and  he  becomes  their  commander-in-chief.  Dig.  Opin.  J.  A.  Gen.,  519, 
par.  2.     See  also  Sections  1642-1656,  0297-5299,  Revised  Statutes. 

»  Article  I,  Section  8,  CI.  15. 


77/A'  .II'RISDJCTIOX  OF  COURTS-MARTIAL.  49 

employment  to  llie  specific  uses  named;  i.e.,  to  "execute  the  laws  of  the 
Union,  suppress  insurrections,  and  repel  invasions."  The  period  of  service 
of  the  militia  thus  called  into  active  service  is  restricted  by  statute  to  a 
term  not  exceeding  nine  months  in  duration.' 

Emergency,  bij  Whom  Delermiucd. — Tiie  question  of  determining  whether 
an  emergency  exists  justifying  the  calling  forth  of  the  militia  or  any  por- 
tion of  the  same,"  the  authority  to  whom  the  call  shall  be  addressed — 
whether  to  the  governor  of  a  State  or  to  the  commanding  ofiicers  of  the 
militia  itself, — and  all  questions  as  to  the  strength  and  coniposition  of  the 
several  quotas  or  contingents  to  be  furnished,  and  the  State  or  States  which 
are  to  furnish  them,  are  matters  within  the  exclusive  discretion  of  the  Presi- 
dent, as  the  commander-in-chief  of  the  Army  and  Xavy  of  the  United 
States.' 

'  Section  1648.  Hevistnl  Statutes.  There  is  no  corresponding  limitation  u\»n\  the 
power  of  the  States  in  respect  to  the  length  of  time  during  wliich  their  militia  may  be 
emj)loyed  in  active  service.     See,  also,  note  2,  p.  51,  post. 

2  The  Act  of  February  28,  189.'5,  (1  Stat.  L.,  424,)  authorizing  the  President  under 
certain  circumstances  to  csill  out  the  militia,  is  constitutional,  and  the  President  is  tlie  final 
judge  of  the  emergency  justifying  such  call.  This  construction  necessarily  results  from 
the  nature  of  the  posveritself^  and  from  the  manifest  object  contemplated  by  the  Act  of 
Congress.  The  power  itself  is  to  be  exercised  upon  sudden  emergencies,  upon  great 
occasions  of  State,  and  under  circumstances  which  may  be  vital  to  the  existence  of  the 
Union.  A  promi)t  and  unhesitating  obedience  to  orders  is  indispensable  to  the  complete 
attainment  of  the  object.  The  service  is  a  military  service,  and  the  command  of  a 
military  nature;  and  in  such  case  every  delay  and  every  obstacle  to  an  etticieut  and 
immediate  compliance  necessarily  tend  to  jeopard  the  public  interests.  Martin  m. 
Mott.  12  Wheat.,  19,  30. 

Where  a  power  is  confided  to  the  President  by  law,  the  presumption  is  that  in  the 
exercise  of  that  power  he  has  pursued  the  law.  The  existence  of  an  exigency  justifying 
the  calling  out  of  the  militia  is  not  traversable  and  need  not  be  averred.  It  is  not 
necessary  to  set  forth  the  orders  of  the  President ;  it  is  sulBcieuc  to  state  that  the  call 
of  the  governor  for  the  militia  was  in  obedience  to  them.  For  disobedience  to  a  call 
made  by  a  governor  for  the  militia  in  pursuance  of  the  orders  of  the  President,  a  citizen  is 
liable  to  be  tried  by  a  court-martial  organized  under  the  laws  of  the  United  States. 
Ibid.,  33.     Sanderhe'yden  vs.  Young,  11  Johns.  (N.  Y.),  150. 

*  The  manner  of"  calling  nut  of  the  militia  by  the  President  under  the  Act  of  1795 
(Sec.  1642.  H.  S.)  is  indicated  by  the  Supreme  Court  in  the  leading  case  of  Houston  vs. 
Moore,*  where  it  is  observed  that  "  the  President's  orders  may  be  given  to  the  chief 
executive  magistrate  of  the  St  te,  or  to  any  militia  otiicer  he  may  think  proper."  The 
call  would  ordinarily  be  addressed  to  the  governor,  who,  in  most  of  the  States,  is  made 
commander-in-chief  of  the  active  nulitia  of  the  State.  A  further  form,  indeed,  of  calling 
out  the  militia,  viz.,  by  a  conscription,  was  authorized  during  the  late  war  by  the  Act  of 
Julv  17,  1862.     Dig.  j'.  A.  Gen.,  519,  par.  1. 

The  calling  forth  of  tlie  militia  into  the  United  States  service  is  an  administrative 
function,  a  ministerial  act,  in  which  the  Secretary  of  War  may  issue  the  necessary 
orders  as  the  organ  of  the  Executive,  and  his  act  is  the  act  of  the  President.  Ibid., 
par.  3. 

In  the  exercise  of  its  constitutional  power  "to  provide  for  calling  forth  the  militia  " 
and  "to  provide  for  organizing  "  the  same,  etc..  Congress  has  made  no  distinction  be- 
tween any  dillerent  portions  of  this  force,  or  recognized  any  such  portion  as  the  "  national 
guard."  The  law  relating  to  the  subject,  Kevised  Statutes,  title  16,  Sections  1625.  1642, 
etc.,  contemplates  but  a  single  integral  body  as  constituting  the  militia  and  as  liable  to 
be  called  out.  'Under  the  existing  law,  the  "  national  guard  "'  of  a  State  cannot  legally 
be  called  (uit  as  such.  Upon  a  call,  the  governor  may  indeed  order  them  out,  as  being 
organized  and  available,  so  far  as  they  will  go  to  make  up  the  number  of  the  militia 
required.     Jhid.,  p.  520,  par.  7. 

The  United  States  statutes  take  no  notice  of  "national  guard  "  as  such.     If  called 


♦  5  Wheaton,  1  (1820). 


50  MILITARY  LAW. 

How  Called  into  Service. — It  has  been  seen  that  the  order  of  the  President 
callino-  forth  auy  part  of  the  militia'  under  the  several  Acts  of  Congress* 
authorizing  its  embodiment  may  be  addressed  to  the  governor  of  the  State 
or  to  the  commanding  ofticers  of  particular  organizations  of  the  militia,  as 
he  may  think  proper.'  To  make  this  power  effective  it  must  be  coupled 
with  authority  to  compel  obedience  to  the  President's  command.  To  this 
end,  therefore,  the  statutes  above  referred  to  make  a  failure  to  appear  at  the 
appointed  rendezvous,  on  the  part  of  an  individual  member  of  the  militia, 
a  military  offense,  to  which  an  appropriate  penalty  is  attached,  and  over 
which  a  court-martial  convened  by  the  authority  of  the  United  States,  or 
that  of  the  State  to  which  the  militia  force  of  the  offender  belongs,  is  given 
concurrent  jurisdiction.' 


out,  it  is  not  as  "  national  guard,"  but  as  militia;  and  when  so  called  forth  or  included 
in  a  call,  it  must  be  governed  by  the  existing  laws  providing  for  the  organization, 
discipline,  etc.,  of  the  militia.     Dig.  J.  A.  Gen.,  520,  par.  8. 

The  "  national  guard,"  s.>  called,  being  merely  militia,  cannot  (where  not  called  forth) 
be  "supported"  or  "maintained"  by  Congress,  which  is  authorized  by  the  Constitution 
to  "support"  and  "maintain"  the  Army  and  Navy  only.  So  officers  of  the  national 
guard  cannot  be  commissioned  by  the  President  without  a  violation  of  the  Constitution, 
which  "  reserves  the  appointment  of  militia  officers  to  the  States  respectively."     Ibid., 

par.  10. 

'  Houston  vs.  Moore,  5  Wheaton,  1  ;  see,  also,  note  3,  p.  49.  ante. 

2  Acts  of  Feb.  28,  1795,  (1  Slat,  at  Large,  424,)  April  8,  1814,  (3  ibid.,  134.)  and  July 
17,  1862,  (12  ibid.,  594.)  The  manner  of  the  calling  out  of  the  militia  by  the  President 
under  the  Act  of  1795  (Sec.  1642,  Rev.  Sts.)  is  indicated  by  the  Supreme  Court  in  the  leading 
case  of  Houston  vs.  Moore,*  where  it  is  observed  that  "the  President's  orders  may  be 
given  to  the  chief  executive  magistrate  of  the  State,  or  to  any  militia  officer  he  may 
think  proper."  The  call  would  ordinarily  be  addressed  to  the  governor,  who  in  most 
of  the  States  is  made  commander-in-chief  of  the  active  militia  of  the  State.  A  further 
form  indeed  of  calling  out  the  militia,  viz.,  by  a  conscription,  was  authorized  during 
the  late  war  by  the  Act  of  July  17,  1862.     Dig.  J.  A.  Gen.,  519,  par.  1. 

The  PresideiU  has  no  original  autiiority  over  the  militia  by  right  of  his  office.  He 
can  only  call  them  out  when  Congress  provides  for  his  doing  so  as  the  agent  of  the 
United  States  for  such  purpose.  When  the  call  is  complied  with,  the  militia  becomes 
national  nulitia,  and  he  becomes  their  commander-in  chief.  The  law  governing  his 
exercise  of  power  in  calling  out  is  found  in  Sees.  1642,  5297,  5298,  and  5299,  Rev.  Sts. 
Ibid.  par.  2. 

Tne  calling  forth  of  the  militia  into  the  U.  S.  service  is  an  administrative  function, 
a  ministerial  act,  in  which  the  Secretary  of  War  may  issue  the  necessary  orders  as  the 
oriran  of  the  Executive,  atid  liis  act  is  the  act  of  the  President.     Ibid.,  par.  3. 

~.Tt  is  not  essential  for  a  militia  organization  that  there  should  be  a  formal  muster-in 
to  bring  it  into  the  actual  service  of  the  United  States.  The  provision  of  the  Act  of 
1862  relating  to  the  muster-in  of  militia  is  directory  only.     Ibid.,  par.  4. 

Tin;  President,  in  calling  out  a  force  of  militia,  authorized  the  governor  of  a  State 
to  (iesi Lunate  the  particular  militia  of  that  State  to  be  included  in  the  call,  and  the  gov- 
ernor 1  hereupon  designated  a  certain  regiment,  and  formally  accepted  its  service.  Held 
that  in  so  doing  he  acted  as  the  agent  of  the  Pre.sident,  and  that  his  acceptance  was  in 
hiw  an  acceptance  by  the  President,  and  was  equivalent  to  a  muster-in  of  the  regiment. 
llrid  ,  par  5. 

^  Hou.ston  vs.  Moore,  5  Wheaton,  1.  Section  1658,  Revised  Statutes,  prescribes  that 
"  courts-martial  for  the  trial  of  militia  shall  be  composed  of  militia  officers  only."  The 
77ili  Article  of  War  contains  a  recognition  of  the  same  principle  in  the  form  of  a  pro- 
liihiiion  to  the  effect  that  "officers  of  the  regular  army  shall  not  be  competent  to  sit  on 
courts-martial  to  try  the  officers  or  soldiers  of  other  forces,  except  as  provided  in 
Article  78."  ''Held  that  the  enactment  applied  also  in  principle  to  courts  of  inquiry  con- 
vened in  the  militia,  and  that  officers  of  the  army  could  not,  for  purposes  of  instruction 

■*  b  Wlieatoii,  1. 


THK  JURISDICriON  OF  COURTSMAHTIAL.  51 

When  Subject  to  Military  Law. — The  militia  wlien  called  into  active 
service  by  the  President  become  subject  to  military  law  in  the  same  manner 
and  to  the  san)e  extent  as  other  troops  of  the  United  States.'  The  officers 
of  tlie  militia  while  "employed  in  conjunction  with  the  regular  or  volunteer 
forces  of  the  I'nited  States  take  rank  next  after  all  officers  of  like  grade  in 
said  regular  and  volunteer  forces,  notwithstanding  the  commissions  of  such 
militia  officers  may  be  older  than  the  commissions  of  the  said  officers  of 
regular  and  volunteer  forces  of  tlie  United  States." '' 

Conscription. — In  addition  to  the  metliods  above  described,  the  United 
States  may  obtain  the  service  of  a  portion  of  its  militia  by  an  exercise  of  the 
right  of  conscription.  Resort  was  had  to  this  method  of  obtaining  a  mili- 
tary force  by  the  Acts  of  July  17,  18G2,  March  3,  1803,  and  February  10, 
18G4.  These  statutes  provided  for  a  national  enrollment  under  the  authority 
of  the  United  States,  for  an  apportionment  of  quotas  in  accordance  there- 
with, and  authorized  such  ([uotas  to  be  obtained  by  conscription  iu  the 
several  districts  into  which  each  of  the  States  was  divided.  Certain  classes 
of  persons  were  exempted  from  the  operation  of  the  conscription  law,  and 
drafted  men  were  released  from  service  upon  the  presentation  of  acceptable 
substitutes  or  by  the  payment  of  a  sum  specified  in  the  statute.' 

c.  Retainers  to  the  Camp;  Camp-foUoiuers ;  Civilian  Employes. — The 
()3d  Article  of  War  makes  two  classes  of  persons  amenable  to  military  law 
who,  unlike  the  classes  already  described,  form  no  part  of  the  military  forces 
of  the  United  States.  By  their  voluntary  presence,  however,  \Vith  an  army 
in  the  field,  in  time  of  war,  they  may  be  regarded  as  having  submitted  them- 
selves, of  their  own  free  will,  to  the  status  in  which  they  are  placed  by  the 
operation  of  the  statute.  The  Article  arranges  such  persons  into  two 
classes:  (1)  Retainers  to  the  camp,  or  camp-followers.     Under  this  head  fall 

or  assistance,  legally  be  detailed  to  be  associated  witb  militia  officers  as  members  of  such 
courts."     Dig.  J.  A.  Gen.,  531,  par.  11. 

'  Section  1(544,  Revised  Stalutcs  of  the  United  States;  (J4  Article  of  War. 

*  One  hundred  and  tweniy-foiirth  Article  of  War.  The  Act  of  February  28,  1795, 
(1  Stat,  at  Large,  424.)  fixed  the  period  of  service  of  the  militia  serving  under  a  call  of 
llie  President  at  three  niontlis  ;  this  period  was  extended  to  six  inonlhs  t)y  the  Act  of 
April  8,  1814,  (:i  ibid.,  i:^4.)  and  to  nine  months  by  the  Act  of  July  17,  1862.(12  ibid.,  594: 
Sec.  1648.  Rev.  Stat.)  The  period  of  service  begins,  in  any  case,  on  the  date  of  the 
arrival  of  tlie  militia  at  the  place  of  rendezvous,  on  which  date  the  obligations  of  the 
United  States  in  resjiect  to  pay.  rations,  clothing,  and  the  like  become  operative.  The 
Acts  of  Feb.  28.  1795,  (1  Stat",  at  Large,  524.)  and  March  19,  1836,  (5  ihid.,  7.)  authorize 
certain  travel  allowances,  in  behalf  of  members  of  the  militia,  during  the  period  of 
a.ssembly,  prior  to  ii>  entry  into  the  service,  and  during  a  corresponding  period  covering 
its  dispersion  after  discharge. 

Where  miliiia  are  called   out   and   mustered   into  actual  service,  the  statT otticers  of 
their  commanding  general  caiuiot  be  considered  as  in  any  sense  appointed  l)y  the  Secre- 
tary of  War  or  comnns^ioned  by  tlic  President.     Nor  are  they  given   the  corresponding 
raiiic  of  staff  otticers  of  the  regular  army,  but  their  rank  remains  the  same  as  it  was  be 
fore  in  the  militia  umier  the  State  laws.     Din.  J.  A.  Gen.,  522,  par.  18. 

'  See  Acts  of  Julv  17,  1S62.  (12  Stat,  at  Large,  597),  iVIarch  3,  1863.  (12  ibid..T.n,\  and 
February  24.  1864.  (13  ibid.,  8.)  See,  also,  U.  S.  r«.  Scott,  3  Wallace,  642  ;  U.  S.  r«. 
Murphy,  ibid..  649. 


i)L'  MILITARY  LAW. 

sutlers,  traders,  correspondents,  restaurant-keepers,  officers'  servants,  and 
the  like,  -whose  employment,  if  any  there  be,  is  private,  not  public,  in 
character.  (2)  Civilian  employees  of  the  United  States,  such  as  clerks, 
teamsters,  guides,  interpreters,  telegraph-operators,  and  the  like,  whose 
services  are  necessary  to  the  administration  of  the  several  staff  departments.' 
It  will  be  observed  that  the  statute  is  restricted  in  its  operation  to  persons 
accompanying  armies  in  the  field  in  time  of  war,  and  in  the  actual  theatre 
of  military  operations.'  It  has  been  held  to  apply,  however,  to  employees 
and  others  accompanying  troops  engaged  in  extensive  operations  against 
hostile  Indians;"  but  it  has  never  been  construed  to  apply,  even  in  time  of 
war,  to  any  portions  of  the  territory  of  the  United  States  in  which  military 
operations  were  not  being  carried  on  against  the  public  enemy.  It  is  proper 
to  observe  that  individuals  of  the  class  termed  "  retainers  to  the  camp,"  such 
as  officers'  servants  and  the  like,  as  well  as  camp-followers  generally,  have 
rarely  been  subjected  to  trial  in  our  service.  For  breaches  of  discipline 
committed  by  them  the  punishment  lias  generally  been  expulsion  from  the 
limits  of  the  camp  and  dismissal  from  employment." 

1  Dig.  J.  A.  Gen.,  75,  par.  2. 

2  The  discipline  authorized  by  the  Article  has  mainly  been  applied  to  the  description 
of  "  persons  serving  with  the  armies  of  ihe  United  States  in  the  tield,"  that  is  to  saj% 
civilians  serving  in  a  9!/«si-miliiary  capacity  in  connection  with  troops  in  time  of  war 
and  on  its  theatre.  Thus  during  the  late  war  civilians  of  the  following  classes  were, 
in  repeated  case.^,  held  amenable,  under  this  Article,  to  tlie  military  jurisdiction,  and 
subjected  to  trial  and  punishment  by  courts-martial  :  teamsters  employed  with  wagon- 
tiaius,  watchmen,  laborers,  and  other  employees  of  the  quartermaster,  subsistence,  en- 
gineer, ordnance,  ]irovost-marshal,  etc.,  departments;  ambulance-drivers  ;  telegraph- 
operators  ;  inieritreters  ;  guides;  paymasters' clerks  ;  veterinary  surgeons;  "contract" 
surgeons,  nurses  and  hospital  attendants;  couduciors  and  engineers  of  lailroad-trains 
opel-ated  upon  the  theatre  of  war  for  military  purposes  ;  officers  and  men  employed  on 
government  transports,  etc.  But  the  mere  fact  of  employment  by  the  government  pend- 
ing a  general  war  does  not  render  the  civil  employee  so  amenable.  The  employment 
must  be  in  connection  with  the  army  in  the  tield  and  on  the  theatre  of  hostilities.  Dig. 
J.  A.  Gen.,  75,  par.  2. 

Held  Jime,  1863)  that  the  force  employed  in  the  "  Ram  Fleet"  on  western  waters 
was  proi)erly  a  contingent  of  the  army  rather  than  of  the  navy,  and  accordingly  that 
civilian  commanders,  pilots,  and  engineers  employed  upon  such  fleet  during  the  war  and 
before  tiie  enemy  were  persons  serving  with  the  armies  in  the  field  in  the  sense  of  this 
Article,  and,  therefore,  amenable  to  trial  by  court-martial.  Ibid.,  par.  3.  See,  also,  ibid., 
par.  6. 

"  Dig.  J.  A.  Gen.,  76,  par.  4. 

"  Ibid.,  75,  par.  1.  By  the  sixth  amendment  of  the  Constitution  civilians  are 
guaranteed  the  right  of  trial  by  jury  "  in  all  criminal  prosecutions."  _  Tiius  in  tinie  of 
peace  a  court-martial  cannot  assume  jurisdiction  of  an  offense  committed  by  a  civilian 
without  a  violation  of  the  Constitution.  It  is  only  under  the  exceptional  circumstances 
of  a  time  of  war  that  civilians  may,  in  certain  situations,  become  amenable  to  trial  by 
court-martial.*     Dig.  J.  A.  Gen.,  325,  par.  7. 

A  civilian  brought  to  trial  before  a  court-martial  cannot,  by  a  plea  of  guilty  or  other 
form  of  legal  assent,  confer  jurisdiction  vipon  the  court  where  no  jurisdiction  exists  in 
law.f     Ibid. 

*  See  in  support  of  this  view,  Expnrte  Milligran,  4  Wallace.  121-123;  Jones  vs.  Seward,  40  Barb  ,  563; 
In  Matter  of  Martin,  4.5  ibid..  145:  Smith  r.5.  Shaw,  12  Johns.,  257,  265:  In  Mattr-r  of  Stacy,  10  (Wd..332; 
Mills  U.S.  Martin.  19  ihid..  22:  Johnson  vs.  Jones,  44  111.,  ll\i,  l.")5;  Griffin  rs.  Wilcox,  21  Iiid..  3S6:  In  re 
Keinii,  10  VVis.,  339;  Ex  parte  McKoberts,  16  Irnva,  60J;  Antrim's  Case,  5  I'hilad.,  2S8;  3  Opin.  Att.-Gen., 
690;  13  ibid..  6^. 

t  Compare  People  va.  Campbell,  4  Parker.  386:  Shoemaker  w.  Nesbit.  2  Rawle,  201;  Moore  «* 
Houston,  3  Sergt.  &  Rawle,  190;  Duffield  vs.  Smith,  i6id.,599;  also  One  Hundred  and  Third  Article. 


THE  JURISDICTION  OF  COURTS  MARTI AI..  53 

d.  Relieving^  or  Giving  Intelligence  to,  the  Enemy. — In  addition  to  tlie 
classes  already  described,  certain  persons  become  subject  to  military  juris- 
diction, and  so  to  trial  by  court-martial,  as  a  consequence  of  the  commission 
of  specific  statutory  offenses  in  time  of  war.  Such  are:  (1)  those  who 
relieve  the  enemy  with  money,  victuals,  or  ammunition,  or  knowingly  liarbor 
or  protect  him;'  i^l)  whosoever  holds  correspondence  with  or  gives  intelli- 
gence to  the  enemy,  either  directly  or  indirectly;'  (3)  spies.'  Spies  are 
persons  who,  in  disguise  or  under  false  pretenses,  enter  the  lines  of  an  army 
for  the  purpose  of  obtaining  information  for  the  use  of  the  enemy.  Acting 
as  a  spy,  therefore,  is  an  offense  against  the  laws  of  war,  and,  as  such,  comes 
into  existence  only  during  the  pendency  of  active  military  operations. 

It  has  already  been  seen  that  military  laws  are  always  strictly  construed; 
that  is,  that  no  persons  are  made  subject  to  them  or  brought  within  their 
operation  save  with  the  express  authority  of  law.  The  word  "  whosoever" 
in  Articles  45  and  46  and  the  words  "  all  persons  "  *  as  used  in  Section  1343, 

Any  statute  by  which  any  class  of  civilians  is  attempted  to  be  made  amenable  to  trial 
by  court-mailial  for  offeuse^  committed  while  civilians  and  in  time  of  peace  is  necessarily 
unconstitulional.     Disr.  J.  A.  Gen.,  par.  8. 

'  4/)th  Article  of  \Var. 

«  46th  Article  of  War. 

'  Section  1348.  Revised  Statutes. 

While  the  4r)tli  and  46tii  Articles  appear  to  confer  jurisdiction  upon  courts-m'artial  to 
try  and  punish  civilians  for  the  offenses  therein  named,  it  may  perhaps  be  doubted 
■whether,  since  the  adoption  of  the  Constitution,  the  conviction  of  a  civilian  under 
either  Article  would  be  sustained.  For  the  offenses  thus  set  forth,  however,  civilians 
would,  in  time  of  war,  properly  be  triable  by  military  commissions. 

■*  In  view  of  the  general  term  of  description  in  this  and  the  succeeding  Article, 
"whosoever,"  it  was  lield.  during  the  late  war,  by  the  Judge- Advocate  General  and  by 
the  Secretary  of  War,*  and  has  been  held  later  by  the  Attorney-General, f  that  civilians 
equally  with  military  persons  were  amenable  to  trial  and  punishment  by  court-martial 
under  either  Article. |     Dig.  J.  A.  Gen.,  40,  par.  1. 

During  the  late  war  all  inhabitants  of  insurrectionary  States  w em  prima  facie  enemies 
in  the  sense  of  this  and  the  succeeding  Article. §  A  citizen  of  an  insurgent  State  who 
entered  the  U.  S.  military  service  became  of  course  no  longer  an  enemy.  So  held  of  a 
lieutenant  of  the  1st  E.  Tt-nn.  Cavalry.     Ibid.,  41.  par.  2. 

It  is  no  less  a  relieving  an  enemy  under  this  Article  that  the  money,  etc.,  furnished 
is  exchanged  for  some  commodity,  as  cotton,  valuable  to  the  other  party.  Ibid., 
par.  3. 

The  act  of  "  relieving  the  enemy  "  contemplated  by  this  Article  is  distinguished  from 
that  of  tr.iding  with  tiie  enemy  in  violation  of  the  laws  of  war;  the  former  being 
restricted  to  certain  jiarticular  forms  of  relief,  while  the  latter  includes  every  ki-id  of 
commercial  intercourse  not  expressly  authorized  by  the  government.     Ibid.,  par.  4. 

*Seef{.0.  67,  WarDppt.,  1861;  also  the  following:  Orders  of  that  Department  publishint;  and  ap- 
proviDj^  senten<'f>s  i>f  civilians  tried  and  eonvielt'il  under  tliese  Ai'ticles  :  G.  O.  76,  175,  "JoO,  371,  of  1863; 
do.  .51  of  1864:  ti.  C.  .M.  O.  106,  157,  of  1864;  do.  ~'60,  671,  of  1865. 

t  13  Opins.  Att  -Gen.,  47:.'. 

t  AilniittiiiK  this  construction  to  be  warranted  so  far  as  relates  to  acta  committed  on  the  theatre  of 
war  or  within  a  district  imder  martial  law.  it  is  to  be  noted  that  it  is  the  eflfect  of  the  leadinj?  adjudped 
cases  to  preclude  the  exercise  of  the  military  jurisdiction  over  this  class  of  offenses  when  committed, 
by  civilians  in  places  not  under  military  povernrnent  or  martial  law.  See.  especially,  Kx  parte 
Millisran.  4  Wallace.  r.M-l-'"5;  Jones  vs.  Sewani,  40  Barb.,  563;  al.so  other  cases  cited  in  note  to  par.  7, 
p.  i'ih.  Dig:.  J.  A.  Gen. 

§  See  the  opinion  of  the  U.  S.  Supreme  Court  (frequentiv  since  reiterated  in  sulistance>  as  sriven  by 
Grier.  J.,  in  the"  Prize  Case*,"  2  Black,  666  (IKOS);  and  by  Chase.  C.  J.,  in  the  cases  of  Mrs.  .M-'Xinder's 
Cotton,  and  The  Venice.  :2  Wallace,  274,  418  (18R4).  In  tlie  latter  case  the  Chief  Justice  observes  :  ••  The 
rule  which  declares  that  war  makes  all  the  citizens  or  subjects  of  one  belligerent  enemies  of  the  povern- 
meni;  and  of  all  the  citizens  or  subjects  of  the  other  spplies  equally  to  civil  and  to  international  wars." 
That  an  insurrectionary  State  was  no  less  "  enemy's  coimtry,"  though  in  the  military  occupation 
of  the  United  States,  with  a  military  governor  appointed  by  the  President,  see  opinion  by  Field,  J., 
in  Coleman  vs.  Tennessee,  7  Otto,  516,'517. 


54:  MILITARY  LAW. 

Kevised  Statutes,  have  been  held  to  inchide  civilians  as  well  as  military 
persons,  and  to  render  them  liable  to  the  penalties  therein  imposed.* 

6.  Inmates  of  the  Soldiers''  Home  and  of  the  National  Home  for  Disabled 
Volunteer  Soldiers. — The  inmates  of  the  Soldiers'  Home  at  Washington, 
D.  0.,  are  declared  in  Section  4824  of  the  Revised  Statutes  "  to  be  subject 
to  the  Rules  and  Articles  of  War  in  the  same  manner  as  soldiers  of  the 
Army  "" ; '  Section  4853,  Revised  Statutes,  declares  that  "  all  inmates  of  the 
National  Uome  for  Disabled  Volunteer  Soldiers  shall  be  subject  to  the  Rules 
and  Articles  of  War,  and  in  the  same  manner  as  if  they  were  in  the  Army."  ' 

Beginning  of  Period  of  Amenahility. — Members  of  the  military  estab- 
lishment become  amenable  to  the  jurisdiction  of  courts-martial  by  their  vol- 
untary entry  into  the  military  service.  In  the  case  of  a  commissioned  officer 
of  the  regular  or  volunteer  forces  such  amenability  dates  from  the  accept- 
ance of  his  appointment  or  commission,*  or,  in  certain  cases,  from  the  date 

'  Held  that  the  offense  of  holding  correspondence  with  the  enemy  was  completed  by 
writing  and  putting  in  progress  a  letter  to  an  inhabitant  of  an  insurrectionary  Stale 
during  the  late  war  ;  it  not  being  deemed  essential  to  this  offense  that  the  letter  should 
reach  its  destination.*     Dig.  J.  A.  Gen.,  42,  par.  1. 

It  is  essential,  however,  to  the  offense  of  giving  intelligence  to  the  enemy  that 
material  information  should  actually  be  communicated  to  him  ;  the  communication  may 
be  vertjal,  in  writing,  or  by  signals.     Ibid.,  \mT.  2. 

'  Thfs  section,  however,  is  unconstitutional  and  a  dead  letter.  These  inmates  are  no 
part  of  the  army,  nor  are  they  supported  by  the  United  States.  They  are  civilians  occu- 
pying dwellings  and  sustained  by  funds  held  in  trust  for  them.  The  territory  of  the 
Home  being  within  the  District  of  Columbia,  and  not  having  been  exempted  by  Congress 
from  the  operation  of  the  criminal  laws  of  the  District,  the  inmates  are  subject  to  those 
laws  like  any  other  residents.  Dig.  J.  A.  Gen.,  TOo,  par.  2.  See,  also,  744  ibid.,  par. 
4,  and  20  Opin.  Att.-Gen.,  514. 

"  See  note  2,  supra.  In  March,  1870,  the  president  of  the  National  Home  for  Dis- 
abled Volunteer  Soldiers,  a  civilian,  convened  at  the  Home  a  court-martial  composed  of 
eight  inmates  of  the  same  (all  civilians,  but  designated  by  their  former  rank  in  the 
volunteer  service,  as  "  surgeon,"  "  captain,"  "  sergeant,"  and  "  private")  for  the  trial, 
on  charges  of  desertion  and  other  offenses,  of  another  (civilian)  inmate.  The  court  tried 
the  accused,  convicted  him,  and  sentenced  him  to  a  term  of  imprisonment.  The  pro- 
ceedings and  sentence  were  approved  by  the  convening  authority,  who  thereupon 
applied  to  the  Secretary  of  War  for  an  order  designating  a  military  prison  for  the  con- 
finement of  the  party  in  execution  of  his  sentence.  Held  (upon  a  reference  of  the  case 
for  opinion,  by  the  Secretary  of  War)  that  the  proceedings  were  unprecedented,  un- 
authorized ah  initio,  and  void  as  a  whole  and  in  detail  ;  that  the  provision  in  the  Act 
establishing  the  Home  that  the  inmates  should  be  "subject  to  the  rules  and  articles  of 
war  in  the  same  manner  as  if  they  were  in  the  army,"  even  if  it  could  be  regarded  as 
constitutional,  conveyed  no  authority  for  such  a  court  as  tliat  constituted  and  composed 
in  this  case  ;  and  thai  the  sentence  adjudged  by  the  same  could  not  legally  be  executed 
in  the  manner  proposed  or  otherwise.!  See,  also,  U.  S.  vs.  Murpliy,  9  Fed.  Rep.  26,  in 
which  it  was  held  that  inmates  of  this  Home  were  not  in  the  military  service  of  the 
United  Slates.     Dig.  .J.  A.  Gen.,  329,  i)ar.  15. 

''An  appointment  (or  commi-ssion)  in  order  to  take  effect  at  all  must  be  accepted; 
but,  when  accepted,  it  takes  effect  as  of  and  from  its  date,  i.e.,  the  date  on  which  it  is 
completed  by  the  signature  of  the  appointing  power,  or  that  as  and  from  which  it  pur- 
ports in  terms  to  be  operative.:t     I^'S-  •^-  ^-  Gen.,  149,  par.  1. 


*  Compare  Hensey's  Case,  1  Burrow.  6«:  Stone's  C^ise.  6  Term.  ."jS?;  Samuel,  580. 

t  It  is  inaccurately  stated  in  the  report  of  the  case  of  Renner  vs.  Bennett,  2)  Ohio  St.,  4-34,  (December, 
1871,)  that  no  inmate  of  the  National  Home  had  ever  been  subjected  to  a  trial  by  court-martial.  The 
instani^e  referred  to  in  the  text,  hfjwever,  is  th<-  only  one  known  of  such  a  trial. 

J  See  Marbury  vs.  Madison,  1  Cranch,  137  :  United  States  v.t.  Bradley,  10  Peters,  304;  United  States 
vs.  Le  Baron,  19  How.,  78;  Montgomery  vs.  United  States,  5  Ct.  CI.,  97. 


THE  JLEISDICTION  OF  CO LliTS  MARTIAL.  55 

of  muster-in'  of  the  organization  to  which  he  belongs;  in  the  case  of  an 
enlisted  man  the  date  of  entry  into  service,  and  so  of  amenability  to  military 
law,  is  determined  by  his  enlistment."  If  any  ])ortion  of  the  militia  be  called 
into  the  service  by  the  President,  the  amenability  of  its  members  to  militarv 
law  begins  at  the  date  of  assembly  named  in  the  orders  calling  them  forth.' 
In  respect  to  persons  couscribed,  such  amenability  relates  to  and  becomes 
operative  from  the  date  fixed  in  the  statute  authorizing  the  conscription.* 

Enlistmeyit. — The  enlistment  of  a  person  in  the  military  service  of  the 
United  States  is  always  a  voluntary  act,  and  consists,  in  substance,  of  the 
e.xecutiou  of  a  contract  of  enlistment,  to  which  the  United  States  and  the 
enlisted  man  are  parties.'  The  transaction  which,  as  will  presently  be  seen, 
operates  to  effect  an  important  change  of  status,  in  so  far  as  the  enlisted 


'  Ditr.T.  A.  Gen.,  746,  p:ir.  4. 

*  Our  law  not  deliuiiig  cnlislineut,  nor  dcsigmitiug  wliut  proceeding  or  proceedings 
siiiill  or  may  constitute  an  enlisting,  it  may  he  said  in  general  that  any  act  or  acts  which 
indicate  an  undertaking,  on  the  part  of  a  person  legally  competent  to  do  so,  to  render 
military  service  to  the  United  States  for  the  term  required  by  the  existing  law.  and  an 
acceptance  of  such  service  on  the  part  of  the  government,  maj'  ordinarily  be  regarded  as 
legal  evidence  of  a  contract  of  enlistment  between  the  parties,  and  as  equivalent  to  a 
formal  written  agreement  where  no  such  agreement  has  been  had.*  The  47th 
Article  practically  makes  the  receipt  of  pay  by  a  part}'  as  a  soldier  evidence  of  an  enlist- 
ment on  his  part,  estopping  him  from  denying  his  military  capacity  when  sought  to  be 
made  amenable  as  a  deserter.  8o  held  that  the  fact  that  a  party,  after  having  been  arme(i 
and  clothed  as  a  soldier,  had  voluntarily  rendered  material  .service  as  such,  although  lie 
had  received  no  pay,  constituted  prima  facie  ew'u\enve  thai  a  legal  contract  of  enlistment 
had  been  entered  into  between  him  and  the  United  States.  But  enlistments  in  our  army 
are  now  almost  invariably  evidenced  by  a  forimil  writing  and  engagement  under  oath. 
Ibid  ,  384.  par.  1.  (See,  also,  as  illustrating  what  constitutes  a  formal  enlistment,  Arti- 
cle 2  in  the  chapter  entitled  The  Akticlks  of  Wau.  See,  also,  Kx  parte  Grimlev,  137 
U.  S.,  137.) 

•Houston  TS.  Moore,  1  Wheatou,  1;  Martin  rs.  Mott,  12  ibid.,  19,  30.  Dig.  J  A. 
Gen.,  .")19,  par.  1,  2,  3,  5  ;  Military  Laws  of  the  United  States,  par.  1256,  notes;  Sec. 
1649,  Revi-sed  Statutes. 

*  Section  13,  Act  of  March  8,  1868  (12  Stat,  at  Large  733). 

'  See  note  2.  supra.  A  mere  nou-compliance  with  an  army  regulation,  in  making  an 
enlistment,  does  not  perse  alfect  the  validity  of  the  contract.  Thus  the  fact  that  the 
recruiting  otticer  has  knowingly  enlisted  a  married  man  in  derogation  of  par.  825  of  the 
Regulations,  or  that  a  married  man  has  procured  himself  to  be  enlisted  under  a  repre- 
sentation that  he  was  unmarried,  does  not  affect  the  validity  of  the  enlistment.  In  .such 
a  case  the  President  or  the  Secretaiy  of  War  may,  in  his  discretion,  forthwith  discharge 
the  soldier  under  the  4th  Article  of  War,  or  may  hold  him  regularly  to  service  for  the 
term  for  which  he  has  enlisted. f     Dig.  J.  A.  Geii.,  38.>,  par.  2." 

Sections  1116-1118,  Rev.  Sts.,  jiroviding  that  deserters,  convicted  felons,  insane  or 
into.vicated  persons,  and  certain  minors  shall  not  be  enlisted,  etc.,  are  regarded  as  direc- 
tory only,  and  not  as  necessarily  making  void  such  enlistments,  but  as  rendering  them 
voidable  merely  at  the  option  of  the  government.!  In  cases  of  such  enlistments,  except 
of  course  where  the  party,  by  reason  of  mental  derangement  or  drunkenness,  was  with- 
out the  legal  capacity  to  contract,  the  government  may  elect  to  hold  tiie  soldier  to  .«er- 

•  "On  a  chargre  of  desertion,  or  other  offense  affainst  military  discipline  it  will  he  siiflRfient  to 
prove  that  tlie  accused  received  tlie  pnv  or  did  tlie  duties  of  a  soldier,  without  other  proof  of  his  en- 
listment or  oftth."  .SGreeul.  Kv.,  §  4!-3.  Atid  see  Lebanon  f».  Heath,  47  X.  Hanip..  .359;  Ex  parte 
Anderson,  10  Iowa,  MKt. 

t  In  Kx  parte  Schineid,  1  Dillon,  fiST.  an  application  for  a  discharge  from  his  enlistment  made  hv  a 
soldier  who  had  enlisted  as  an  unmarried  man,  and  based  upon  the  (jronnd  that  he  had  in  fact  a  wife 
and  child  at  the  time  and  that  his  enlistment  w.ms  therefore  a  nullitv.  was  refused  by  the  court  I'U 
hahfax  corpus.  See,  also.  In  re  Grimlev,  l.'JT  U.  S.,  147,  and  the  similar  ruling  in  Ferren"s  Case,  3 
Benedict.  440. 

t  See  United  States  r.«.  Wynpall.  5  Hill,  16  ;  United  States  i'.«.  CottinRham.  1  Rob.,  631;  Commop- 
wealth  ts.  Baker,  5  Binney,  4-'7  ;  In  .Matter  of  Graham,  8  Jones'  Law,  410  ;  Cox  vs.  Gee,  Winsi.  L.  &  E  . 

iol . 


66  MILITARY  LAW. 

man  is  concerned,  is  supported  and  reinforced  by  the  solemn  sanction  of  an 
oath  of  enlistment.  The  act  of  enlistment  is  thus  seen  to  be  contractual  in 
character;  a  violation  of  the  contract,  however,  involves  certain  penal  conse- 
quences which  will  elsewhere  be  described.  "  The  elt'ect  of  the  act  of 
enlistment  is  to  create  a  status,  and  the  taking  of  the  oath  of  enlistment  is 
the  pivotal  fact  which  operates  to  change  the  status  from  that  of  citizen 
to  that  of  soldier.  By  enlistment  the  citizen  becomes  a  soldier.  His  rela- 
tions to  the  State  and  tlie  public  are  changed.  He  acquires  a  new  status 
with  correlative  rights  and  duties;  and  although  he  may  violate  his  contract 
oblio-ations,  his  status  as  a  soldier  is  unchanged.  He  cannot  of  his  own 
volition  throw  olf  the  garment  he  has  once  put  on,  nor  can  he,  the  State 
not  objecting,  renounce  his  relations,  and  destroy  the  status,  on  the  plea 
that,  if  he  had  disclosed  truthfully  the  facts,  the  other  party,  the  State, 
would  not  have  entered  the  new  relations  with  him,  or  permitted  him  to 
change  his  status."  ' 

Termination  of  Liability. — The  enlistment  contract,  thus  entered  into, 
may  be  terminated  prior  to  the  completion  of  the  stipulated  period  by 
purchase ""  of  discharge,  or  by  a  discharge  due  to  disability  caused  by  wounds, 
injury,  or  disease  contracted  or  incurred  prior  to,  or  during,  the  term  of 
enlistment; '  it  may  also  be  terminated  at  any  time  by  a  discharge  issued  at 
the  discretion  of  the  Secretary  of  War,  under  the  authority  conferred  by  the 
4th  Article  of  War.  It  may  be  voided,  by  the  same  authority,  at  the 
instance  of  the  parent  or  guardian,  if  entered  into  by  a  minor  without  his 
consent;*  it  is  not  voidable,  however,  at  the  instance  of  the  enlisted  man 
on  the  ground  of  minority,  fraud,  misrepresentation,  or  concealment,  even 
though  in  point  of   age  he  was  without  legal  capacity  to    contract."     An 

vice,  subject  to  anv  application  for  discharge  which  may  be  addressed  by  himself  or  his 
parent,  etc..  either  to  the  Secretary  of  War  or  to  a  United  States  court..* 

'  Ex  parte  Grimlcv,  137  U.  S.,  1:57. 

2  Section  4,  Act  of  .Tune,  16.  1890  (26  Stat,  at  Large,  157). 

»  Fourth  Article  of  War,  paragraphs  154-157,  Army  liegulalious  of  1895. 

*  See  note  5,  page  55,  luite;  Dig.  J.  A.  Gen.,  387,  par.  5,  6. 

*  It  is  well  establishcfi  that  a  soldier  cannot  liimself  avoid  his  contract  of  enlistment 
on  the  ground  of  minority,  and  abandon  at  pleasure  the  military  service.  His  release 
on  this  ground  can  be  obtained  only  on  application  of  a  parent  or  guardian  entitled  to  his 
services,  and  without  whose  consent  he  enlisted. f  Tiie  application  of  the  parent,  whether 
made  to  the  Secretary  of  War  or,  on  habeas  corpus,  to  a  U.  S.  court,  must  be  made  before 
the  soldier  attains  liis  majority  and  ratifies  his  contract.^     Dig.  J.  A.  Gen.,  389,  par.  12. 

The  enlistment  of  a  u'linor  without  consent  is  not  void,  but  is  voidable  merely,  and 
only  by  the  United  States,  winch,  on  the  fact  of  minority,  etc.,  becoming  known,  may 
waive  "the  objection  and  adopt  and  continue  the  enlistment  or  terminate  it  at  pleasure. 
If  the  minor  (UserU,  he  cannot  take  advantage  of  his  own  wrong  and  plead  in  defense, 
on  trial,  that  the  enlistment  was  void.g    Nor  can  lie  do  so  if  on  enlistment  he  purposely 

*  Under  the  existing  law  the  authority  to  discliarfre  soldiers  on  account  of  minority,  etc.,  is  not 
reserved  to  the  Secretary  of  War  alone,  but  the  United  States  courts  are  empowered  to  mquire  into 
the  validity  of  enlistments  on  hnbenx  corpux.  and  thereupon  to  discharge  enlisted  persons  m  proper 
cases  Ex  parte  Grimley,  137  U.  S.,  137;  Ex  parte  S(^hmeid,  1  Dillon,  .'^87  :  In  re  McDonald,  Lowell. 
106;  McConologue's  Case,  107  Mass.,  154.  This  power  cannot  legally  be  exercised  by  a  State  court. 
Tarble's  Case,  13  Wallace,  397.  ,„^xt^    ,=^ 

+  Tn  re  Hearn,  32  Fed.,  141:  U.  S.  vs.  Gibbon.  24  Fed.,  135;  In  re  Morrissey,  13.  U.  S.,  15(. 

X  In  re  Dohrendorf.  40  Fed..  148;  In  re  Spencer,  id.,  149. 

S  In  re  Morrissey,  137  U.  S.,  157. 


THE  JURISDICTION  OF  COURTS-MARTIAL.  57 

enn^tment  is  normally  terminated  at  the  expiration  of  the  period  of  enlist- 
ment by  a  formal  discharge,  in  writing,  issuing  from  the  proper  military 
authority.'  The  discharge  certificate,  the  issue  of  which  operates  to  put  an 
end  to  the  status  of  enlistment,  is  evidence  not  only  of  the  fact  of  discharge, 
but  of  the  character  of  service  rendered  by  the  soldier  during  the  period  of 
his  engagement. 

Volunteers  or  militia  may  be  discharged  individually,  as  above  described, 
or  they  may  be  mustered  oat  in  organized  bodies,  at  the  expiration  of  their 
term  of  service;'  in  either  case  a  formal  certificate  of  discharge  is  issued. 


concealed  his  age  and  the  enlistment  was  therefore  fraudulent.  That  a  soldier  was  a 
minor  at  enlistment  does  not  affect  his  capacity  to  commit  a  military  offense  or  ihe  juris- 
diction over  him  of  a  court-martial.  Where  a  minor  deserts  he  must  abide,  like  any 
other  soldier,  the  consequence  of  his  criminal  act,  viz.,  uirest,  trial,  and  sentence  if  con- 
victed. Ami  till  the  churgc  of  desertion  has  been  disposed  uf,  or  till  the  sentence  has 
been  underiroue,  not  even  his  parent  can  procure  his  discharge.  The  right  of  the  United 
States  to  hold  him  to  the  penalty  of  the  infraction  of  his  contract  and  of  military  dis- 
cipline is  paramount  to  the  r.ght  of  the  parent  to  his  services,  and  the  parent  cannot 
procuie  his  release  on  habeas  corpus  vihWe  held  in  miliUiry  custody  awaiting  trial,  or 
under  sentence  on  conviction  of  desertion  or  other  military  offense.  The  law  requiring 
consent  of  parent  or  guurtiiiui  applies  to  an  Indian  minor  enlisting  in  the  army.  Ibid., 
par.  13. 

'  See  4th  Article  of  War,  post.  Except  in  cases  to  which  the  last  paragraph  of 
the  60lh  Article  of  War  may  be  applicable,  a  soldier  cannot  be  made  amenable  for  an 
offense  committed  under  an  enlistment  prior  to  that  in  which  he  is  serving.  Re- 
enlist  nient  does  not  revive  such  a  liability.      Dig.  J.  A.  Gen.,  654,  par.  1. 

'  Dig.  J.  A.  Gen.,  355,  par.  1.  A  soldier  honorably  discharged  in  the  usual  form  at 
the  end  of  his  term  is  no  longer  subject  to  military  discipline  or  control.*  Having 
become  a  civilian,  he  is  entitled  to  be  restored  at  once,  or  as  soon  as  the  exigencies  of 
the  service  will  permit,  to  the  rights  and  status  of  a  citizen.     Ibid.,  356,  par.  6. 

The  formal  certificate  of  discharge  furnished  in  blank  by  the  Adjutant-General  is. 
when  duly  made  out  and  signed  (see  Art.  of  War  4),  legal  evidence  of  the  fact  of 
discharge,  and  of  the  circumstances  therein  stated,  under  which  it  was  given. f  The 
certilicate  is  not  a  record,  and  its  statements  are  not  conclusive  upon  the  Government 
when  contradicted  by  record  or  other  better  evidence.     Ibid.,  358,  par.  13. 

The  discharge  furnished  to  the  soldier,  or  for  him,  takes  effect,  like  a  deed,  upon 
delivery.  The  delivery  should  be  personal,  unless,  at  its  date,  the  soldier  is  in  confine- 
ment awaiting  trial  or  under  .sentence;  in  such  case  the  delivery  may  be  constructive, 
the  certificate  being  committed  to  the  commander  of  the  company,  post,  etc.,  to  be 
retained  by  him  for  the  soldier  \intil  released  from  arrest  or  imprisonment,  and  then 
rendered  to  him  personally.  This  is  the  recognized  practice;  the  delivery  to  the  com- 
maiuler  being  deemed  tantamount  to  actual  deliver}'.     Ibid.,  par.  14. 

Any  form  of  discharge  other  than  such  as  is  prescribed  in  the  4th  Article  of  War  is 
irregular  and  inoperative  (unless  indeed  otherwi.se  authorized  by  subsequent  statute). 
Mere  desertion  does  not  operate  as  a  discharge  of  a  soldier:  he  m.ay  then  be  dropped 
from  the  rolls  of  his  command,  but  he  is  in  no  sense  discharged  from  the  army.  Nor 
can  an  official  publication,  in  orders,  of  a  sentence  of  dishonorable  di-charsre  have  the 
effect  of  discharging  a  soldier  ;  there  must  still  be  a  notice,  actual,  as  by  the  delivery  of 
the  formal  discharge  certificate,  or  constructive.  A  soldier  cannot  discharge  himself  by 
simply  leaving  the" service  at  the  expiration  of  his  term.  The  final  statements  recpiired 
by  par.  141,  A.  R.  1895,  to  be  furnished  with  the  discharge,  constitute  no  part  of  the 
discharge:  the  discharge  is  comjilete  without  them.     Ibid.,  359,  par.  17. 

The  statement  of  "character  '  appended  to  the  certificate  is  no  part  of  the  discharge. 
This  description    is  devolved  by  par.  148,  A.  K.   1895,  upon   the  commanding  officer 

*  MucIj  less  is  he  subject  to  be  punished.  In  the  late  case  of  White  r.«,  McDonr>\igh.  3  Sawyer.  311, 
where  a  soldier  whose  term  of  enlistment  expireti  while  he  was  on  a  transport  with  a  detachment  was 
formally  dischargred,  and  suliseqiiently,  on  account  of  an  alleged  breach  of  discipline,  was  ordered 
by  his  commandmg:  officer  to  work  in  the  coal-hole,  the  court  say  :  "The  conduct  of  the  officer  in 
command  was  arbitrary  and  unjustifiable  either  by  law  or  military  necessity." 

t  Hanson  vs.  S.  Scituat«,  115  Mass.,  336;  Bd.  of  Comrs.  vs.  Mertz,  27  Ind.,  336;  U.  S.  vs.  WriRht.  5 
rtxilad.,  296. 


58  MILITARY  LAW. 

The  service  of  a  commissioned  officer  may  be  terminated  in  time  of 
peace  by  resignation,  by  dismissal  in  pursuance  of  the  sentence  of  a  general 
conrt-martial,  or,  under  the  authority  conferred  by  Section  1229  of  the 
Kevised  Statutes,  he  may,  for  absence  without  leave  extending  over  a  period 
of  three  months,  be  dropped  from  the  rolls  by  order  of  the  President.'  In 
addition  to  these  methods,  the  service  of  a  commissioned  officer  in  time  of 
war  may  be  terminated  by  a  formal  discharge  at  the  expiration  of  his  term 
of  service;  and  lie  may  also  be  discharged  at  the  discretion  of  the  President, 
but  with  the  right,  as  will  presently  be  seen,  to  have  the  question  of  his  dis- 
missal inquired  into  by  a  general  court-martial.' 

Jurisdiction  after  Expiration  of  Service. — As  has  been  seen,  an  officer 
or  soldier  (except  as  otherwise  expressly  provided  by  statute)  ceases  to  be 
amenable  to  the  military  jurisdiction  for  offenses  committed  while  in  the 
military  service  after  he  has  been  separated  therefrom  by  resignation,  dis- 
missal, being  dropped  for  desertion,  muster-out,  discharge,  etc.,  and  haa 
thus  become  a  civilian.' 

The  discharge  of  a  soldier,  therefore,  when  subject  to  trial  and  punish- 
ment for  a  military  offense  is  a  formal  waiver  and  abandonment  by  the 
United  States  of  jurisdiction  over  him.  Nor  does  a  soldier  after  having  once 
been  discharged  (as  where  he  has  been  dishonorably  discharged  by  sentence 
for  desertion  or  any  other  military  offense)  remain  liable  to  military  juris- 
diction, or  become  subject  thereto,  as  to  past  offenses,  by  again  entering  the 
military  service,  whether  by  enlistment  or  by  conscription  or  appointment. 
Nor  can  a  person  who,  by  reason  of  acceptance  of  resignation,  dismissal, 
discharge,  etc.,  has  become  wholly  detached  from  the  military  service  be 
made  liable  to  trial  by  court-martial  for  offenses  committed  while  in  the 
service,  on  the  ground  that  such  offenses  were  not  discovered  till  after  he  had 
left  the  Army. 

Exceptions  :  60th  Article  of  War  ;  Military  Convicts. — The  60th  Article 
of  War  confers  jurisdiction  upon  courts-martial  for  the  trial  of  officers  or 
enlisted  men  for  offenses  therein  enumerated,  subject,  however,  to  the  opera- 
tion of  the  statute  of  limitations  contained  in  the  103d  Article.  The  Act 
of  June  18,  1898,*  confers  jurisdiction  for  the  trial  of  enlisted  men  only  who 
have  been  sentenced  to  dishonorable  discharge  and  to  confinement  in  addi- 


whose  duty  it  may  be  to  make  out  the  discharge.  The  Army  Regulations  do  not  give 
to  his  superior  any  authority  over  the  subject.  (See  G.  O.  74  of  1881.)  Dig.  J.  A.  Gen., 
par  18. 

'  Section  1229.  Revised  Statutes.  See  Newton  vs.  U.  S.,  18  Ct.  Cls.,  435 ;  Dig.  J.  A. 
Gen  ,  370,  par.  5  ;  Ibid,  par.  7.     See,  also,  Section  1230,  Rev.  Statutes. 

'  Sections  1229  and  1230,  Rev.  Stat. 

•Dig.  J.  A.  Gen..  323,  par.  5. 

♦  Section  5,  Act  of  June  18,  1898.    (30  Stat,  at  Large.  483.) 


THE  JURISDICTION  OF  COURTS-MARTIAL.  59 

tion  thereto,  sach  jorisdiction  attaching  during  the  period  of  imprisonment 
imposed  by  the  sentence  of  a  general  court-martial. 

But  a  soldier,  if  he  has  not  been  in  fact  discharged,  may  be  brought  to 
trial  by  court-martial  after  the  term  of  service  for  which  he  enlisted  has 
expired,  provided  before  such  expiration  proceedings  with  a  view  to  trial 
have  been  duly  commenced  against  him  by  arrest  or  service  of  formal 
charges.'  By  such  arrest  or  service  of  charges  the  military  jurisdiction 
attaches,  and,  once  attached,  trial  by  court-martial,  and  punishment  upon 
conviction,  may  legally  ensue  though  the  soldier's  term  of  enlistment  may 
in  fact  expire  before  the  trial  be  entered  upon.* 

4.  Jurisdiction  as  to  Offenses. — As  the  Federal  Government,  as  such, 
has  no  common-law  jurisdiction,  it  follows  that  there  can  be  no  criminal 
offenses  against  the  United  States  unless  they  are  made  such  by  statute.' 
This  principle  applies  with  equal  force  to  military  offenses  which,  to  become 
triable  and  punishable  by  military  tribunals,  must  be  expressly  created  by 
statute.  The  several  military  offenses  known  to  the  law  are  to  be  found  in 
the  Articles  of  War  and  in  subsequent  enactments  of  Congress.  Other 
offenses,  while  not  defined  in  those  Articles,  are  adopted  by  them  and  courts- 
martial  are  given  jurisdiction  over  them.  In  some  cases  this  grant  is 
general,  applying  to  all  times  and  places;  in  others  it  is  limited  to  time  of 
war  only.  Still  other  offenses — those  of  being  a  spy,  and  forcing  a  safe- 
guard, for  example — become  such  only  when  a  state  of  war  exists  to  which 
the  United  States  is  a  belligerent  party. 

Courts-martial  have  exclusive  jurisdiction  to  try  offenders  for  acts  con- 

'  Dig.  J   A.  Gen.,  324.  par.  6.     See,  also,  G.  C.  M.  O.  16.  A.  G.  O  ,  1871. 

'  In  ihe  leading  case  on  lliis  point,  of  a  seaman  in  the  navy  (In  re  Walker,  3  Ameri- 
can Jurist,  281*),  tlie  Supreme  Court  of  Massachusetts  held  (Jan.  25,  1830)  as  follows: 
"  In  this  case  the  petitioner  was  arrested,  or  put  in  confinement,  and  charges  were  pre- 
ferred against  him  to  the  Secretary  of  the  Navy  before  the  expiration  of  the  time  of  his 
enlistment;  and  this  was  clearly  a  sufhcient  commencement  of  the  prosecution  to 
authorize  a  court-martial  to  proceed  to  trial  and  sentence,  notwithstanding  the  time  of 
service  liad  expired  before  the  court-martial  had  been  convened."  And,  to  illustrate  the 
injurious  consequences  of  an  opposite  ruling,  the  court  goes  on  to  remark  that  "  if  any 
of  the  class  of  otienses  not  punishable  at  common  law,"  and  "  of  which  no  otl»er  courts 
excepting  courts-martial  can  take  cognizance,  should  be  committed  by  any  .seaman  im- 
mediately befort!  the  expiration  of  his  term  of  service,  he  would  escape  with  impunity. 
He  might  be  guilty  of  the  grossest  insult  to  his  officers  ;  of  disobedience  of  orders  in  the 
most  critical  moment  to  the  .ship  :  and  in  the  hour  of  battle  he  might  refuse  to  fight,  and 
there  would  be  no  power  to  punish  him."  So  held  by  the  Judge-Advocate  General  In 
a  case  of  a  soldier  of  the  regular  army  arrested  on  the  day  before  the  exi>iration  of  his 
term  of  enlistment,  with  a  view  to  a  trial  for  a  military  offense  by  court-martial,  that 
the  jurisdiction  of  the  court  had  duly  attached,  and  that  his  trial  might  legally  be  pro- 
ceeded with.  And  similarly  held  in  repeated  cases  of  soldiers  and  officers  of  regular 
and  volunteer  regiments.     Dig.  J    A.  Gen.,  324,  par.  6. 

»  U.  S.  vs.  Worrall,  2  Dallas.  384  ;  Ei  parte  Bollman.  4  Cranch,  75  ;  U.  S.  vs.    Hud- 
son, 7  Cranch,  32  ;  U.  S.  vs.  Coolidge,  1  Wheat.,  415  ;  U.  S.  vs.  Beraus,  3  Wheat.,  326. 

*  And  seei  Judge  Storv's  charge  to  thp  jury  in  United  States  vs.  Travers,  2  Wheeler  Cr.  C.,  509;  la 
the  Matter  of  Dew,  25  L.  R.,  540;  In  re  Bird,  2  Sawyer.  83. 


60  MILITARY  LAW. 

stituting  military  offenses  only ;  they  also  have  jurisdiction  to  try  offenders 
for  certain  acts  which,  besides  constituting  military  offenses,  are  also  civil 
crimes.  In  the  latter  case  the  military  ordinarily  gives  precedence  to  the 
civil  court,  but  when  an  officer  or  a  soldier  has  been  arraigned  before  a  duly 
constituted  court-martial  for  an  offense  triable  by  it,  the  jurisdiction  thus 
attached  cannot  be  set  aside  by  the  process  of  a  State  court.' 

As  regards  offenses,  the  jurisdiction  therefore  embraces  the  offenses 
specifically  defined  in  the  Articles  of  War,  or  included  under  the  general 
terms  of  the  61st  and  62d  Articles;'  the  offense  of  military  persons  trading 
with  the  enemy,'  and  that  of  fraudulently  enlisting  in  the  service  of  the 
United  States.* 

The  61st  and  62d  Articles  of  IT'ar.— The  61st  Article  of  War  gives  to 
certain  acts  or  omissions  on  the  part  of  an  officer  the  character  of  a  military 
offense  under  the  name  of  conduct  unbecoming  an  officer  and  gentleman; 
the  particular  acts  or  behavior  that  shall  constitute  such  conduct  being 
determined  by  custom  of  the  service,  as  indicated  by  the  approved  decisions 
of  courts-martial  in  cases  referred  to  them  for  trial.  Especial  weight  is 
attached  to  the  decisions  of  the  President  in  cases  arising  under  the  Article 
in  which  he  appears  as  the  reviewing  authority.'  Certain  crimes,  disorders, 
and  neglects,  when  committed  by  military  persons  under  circumstances  cal- 
culated to  make  them  prejudicial  to  good  order  and  military  discipline,  have 
the  quality  of  military  offenses  conferred  upon  them  by  the  terms  of  the  62d 
Article.' 

Offenses  Exclusively  Triable  by  General  Courts-martial,— These  courts 
have,  as  regards  persons  and  with  reference  to  other  courts-martial,  ex- 
clusive jurisdiction  over  officers,'  cadets,"  and  "candidates  for  promotion."  ' 
Over  enlisted  men,  other  than  candidates  for  promotion,  they  have  con- 


1  "Manual  for  Courts-martial"  (edition  of  July,  1898),  p.  14,  par.  6.  See,  also.  Dig. 
J.  A.  Gen.,  p.  328,  par.  12. 

'  Section  1343,  Revised  Statutes. 

*  Sections  5306  and  5313,  ibid. 

*  Act  of  July  27,  1892.     (27  Stat,  at  Large,  278.)    See  G.  O.  57,  A.  G.  0.,  1892. 
For  definition  of  fraudulent  enlistment,  see  "  Manual  for  Courts-martial  "  (ed.  of  July 

11,  1898),  page  13,  note  4.  A  court  having  once  duly  assumed  jurisdiction  of  an 
offense  and  person  cannot,  by  any  wrongful  act  of  the  accused,  be  ousted  of  its  author- 
ity or  discharged  from  its  duty  to  proceed  fully  to  try  and  determine,  according  to  law 
and  its  oath.  Thus  the  fact  that,  pending  the  trial,  the  accused  has  escaped  from  mili- 
tary custody  furnishes  no  ground  for  not  proceeding  to  a  finding,  and,  in  the  event  of 
conviction,  to  a  sentence,  in  the  case  ;  and  the  court  may  and  should  find  and  sentence 
as  in  any  other  case. 

'  See  the  61st  Article  in  the  chapter  entitled  The  Articles  of  Wak. 

«  See  the  62d  Article  in  the  chapter  entitled  The  Articles  of  War. 

'  83d  Article  of  War. 

«  Section  1326,  Revised  Statutes. 

«  Section  4,  Act  of  July  30,  1892.  (27  Stat,  at  Large,  336.)  Act  of  June  .18,  1896, 
(30  Stat,  at  Large,  483.) 


THE  JURLSLICTION  OF  COURTS  MARTIAL.  60a 

current  jurisdiction  with   tlie  inferior    courts   in   cases  cognizable  by   the 
latter. 

As  regards  offenses,'  they  have  exclusive  jurisdiction  over  all  offenses 
punishable  capitally,'  and  over  those  set  forth  in  the  o8th  Article,  when 
committed  in  time  of  war.  Over  other  offenses  they  have  concurrent  juris- 
diction with  the  inferior  courts;  subject  to  the  qualification  that  all  offenses 
for  which  the  i)rescribed  limit  of  punishment  is  in  excess  of  the  limits  of  the 
punishing  power  of  an  inferior  court,  as  well  as  all  serious  non-capital 
offenses  for  which  limits  of  punishment  have  not  been  prescribed,  are,  when 
practicable,  to  be  tried  by  general  court-martial. 

Appellate  Jurisdiction. — It  has  been  seen  that  the  jurisdiction  of  conrts- 
martial,  in  respect  to  military  offenses,  is  both  original  and  exclusive.  Save 
in  the  case  contemplated  in  the  3(»th  Article  of  AVar,  which  will  be  explained 
hereafter,  their  jurisdiction  is  also  Jiyial,  and  cannot  be  made  the  subject  of 
appeal  to  a  military  tribunal  of  higher  authority  or  more  extensive  jurisdic- 
tion. Nor  can  a  case  properly  triable  by  a  court-martial  be  carried,  by  way 
of  appeal,  to  any  form  of  civil  tribunal;  all  of  which,  without  exception, 
are  without  jurisdiction  to  try  cases  properly  arising  under  the  Articles  of 
War.* 

Rules  of  Interpretation. — Whenever  a  common-law  offense  is,  by  a  suit- 
able enactment  of  Congress,  given  the  character  of  an  offense  against  the 
United  States,  the  rules  regulating  the  interpretation  of  criminal  statutes  at 
common  law  will  prevail  in  all  questions  respecting  its  interpretation. 

'  Paragraph  931,  Army  Regulations  of  1895.  See,  also,  Act  of  June  18,  1898.  (30 
Stat,  at  Large,  483.) 

'  See  "  Manual  for  Courts-martial"  (ed.  of  July  11,  1898),  par.  2,  p.  15,  and  par.  13, 
p.  8. 

*  83d  Article  of  War. 

■*  Tliough  transient  and  summary  their  judgments,  when  rendered  upon  subjecta 
within  their  limited  jurisdiction,  are  as  legal  and  valid  as  those  of  any  other  tribunals  ; 
nor  are  the  same  subject  to  be  appealed  from,  set  aside,  or  reviewed  by  the  courts  of  the 
United  States  or  those  of  any  of  the  States.  Dig.  J.  A.  Gen.,  313,  par.  1  ;  see,  aito, 
note  1,  page  15  antt,  Swaim  vs.  U.  S.,  165  U.  S.,  553,  554. 


606 


MILITARY  LAW. 


TABULAR   STATEMENT  OF   THE  JURISDICTION  OF  COURTS-MARTIAL." 


Juris- 
diction. 


Place. 


'  The  United  States. 
The  territory  of  the  enemy  in  time  of  war. 
Friendly  foreign  territory  in  time  of  peace  (exterritoriality). 


During  period  of  service. 
After  expiration  of  service. 


f  1.  Desertion.     (48  A.  W.) 
I   2.   Where  proceeding  has  been 
)  instituted  before  expiration 

)  of  service,  by  arrest  or  con- 

finement,  etc. 
[  3.  Offenses  under  Article  60. 

Trial  to  be  had  within  statute  of  limitation. 
Time.  •{   AH  offenses  except  desertion  in  time  of  peace  ;  order  for  trial  to 
be  issued  within  two  years  after  commission  of  offense.    (103 
A.  W.) 

Desertion  in  time  of  peace  ;  offender  to  be  brought  to  trial  be- 
tween date  of  desertion  and  two  years  after  expiration  of 
term  of  enlistment.     (Act  of  April  11,  1890.) 

(Statutes  of  limitation  are  properly  matter  of  defense.  See 
chapter  on  Incidents  of  the  Trial.) 

i  Regular  Army. 

1.  Army  of  the  United  States  -|  Volunteer  Army. 

(  Drafted  men. 

2.  Militia  in  service  of  the  United  States. 

3.  Marines  detached  for  service  with  the  army. 

4.  Military  convicts  while  undergoing  sentence  of  imprison- 
ment  after  dishonorable  discharge.    (Act  of  June  18,  1898.) 


Persons.  - 


1.  Retainers  to  the  camp,  j  1.  Officer's  servants. 
(63  A.  W.)  I  2.  Camp-followers. 

2.  Persons  serving  with  an  army  in  the  field 
(63  A. W.).  Civilian  employes,  contractors, 
etc. 

5.  Civilians.  \  3.  All  persons  relieving,  corresponding  with, 
or  giving  intelligence  to  the  enemy.  (45, 
46  A.  W.) 

4.  Spies.     (See  1343,  R.  S.) 

5.  Persons  trading  with  the  enemy,  etc.  (Sees. 
5306.  5313,  R.  S.) 


Under 
Articles  ^ 
Offenses.  ■{  of  War 


1. 


CI       -c       ( All  articles, 
SP^'^'fi^    )      except  61 


Military.    All  except  58 
and  60  A.  W. 


I   2. 


l^  (described). 
Under  other  statutes.  \ 


°*°^^^)-  (     and  62.      - 

General    )   Articles  61    j  Military  and  Civil. 
J       and  62.        t      ^^^  60  A.  W. 


58 


Sections  1359,  1360.  5306,  5313,  R.  S.; 
Act  of  July  27,  1892;  etc.,  etc. 


'  Prepared  by  Captain  Geo.  H.  Boughton,  3d  Cavalry,  Assistant  ProfeBSor  of  L»w, 
tr.  S.  Military  Academj. 


CHAPTER  VI. 

AKREtiT   AND  CONFINEMENT. 

THE    ARREST    OF    OFFICERS. 

Arrest  in  General. — To  enable  the  proper  military  authority  to  put  an 
^Mfitaut  end  to  criminal  or  unmilitary  conduct,  and  to  impose  such  restraint 
as  may  be  necessary  upon  the  person  of  a  military  offender,  with  a  view  to 
his  trial  by  court-martial,  the  Articles  of  War  empower  commanding  officers 
to  arrest  officers  serving  under  their  immediate  command ;  they  also  confer 
upon  all  commissioned  officers  a  similar  power  to  confine  enlisted  men.  As 
both  of  these  acts  constitute  restraints  upon  freedom  of  movement,  they 
require  and  liave  received  express  statutory  sanction. 

Arrest  of  Commissioned  Officers. — The  (Joth  Article  of  War^ provides  that 
"  officers  charged  with  crime  shall  be  arrested  and  confined  in  their  barracks, 
quarters,  or  tents,  and  deprived  of  their  swords  by  the  commanding  officer.'' 
The  arrest  of  a  commissioned  officer  is  usually  executed  by  a  staff -officer  of 
the  proper  commander,  by  means  of  an  oral  or  written  order  or  communica- 
tion advising  him  that  he  is  placed  in  arrest,  or  will  consider  himself  in 
arrest,  or  in  terms  to  that  effect.  The  reason  for  the  arrest  need  not  be, 
but  usually  is,  specified,  and  the  arrest  may  also  be  accomplished  by  the  com- 
manding officer  in  person.' 

Except  in  the  case  contemplated  in  the  24th  Article  of  War,  or  in  the 
event  of  an  extraordinary  emergency,  none  but  commanding  officers  can 
place  commissioned  officers  in  arrest;  the  commanding  officer  so  authorized 
being  the  commander  of  the  tactical  or  territorial  command  to  which  the 
arrested  officer  belongs,  that  is,  of  the  department,  post,  or  staff  corps,  or  of 
the  army,  division,  brigade,  regiment,  battalion,  battery,  or  other  separate 

'  Dig.  J.  A.  Gen..  169.  par.  1;  Macomb,  §  19.  Tlie  term  "crime"  is  here  employed 
in  a  general  sense,  referring  to  offenses  of  a  mililary  character,  as  well  as  to  those  of  a 
civil  character  whicii  are  cognizalile  by  conn  martial.  Dig.  J.  A  Gen.,  78,  par.  1.  Com- 
pare Wolton  vn.  Gavin.  10  Ad.  &  El.,  66,  68;  Simmons,  ^  360.  An  arrest,  though  an 
abnost  invariable,  is  not  an  es.sential  preliminary  to  a  military  trial  ;  to  give  llie  court 
jurisdiction  it  is  not  neces.sary  that  the  accusal  sIkiuUI  have  been  airested  ;  it  is  sufficient 
if  he  voluntarily,  or  in  obedience  to  an  order  directing  him  lodo  so.  appears  anil  submits 
himself  to  trial.  So.  neither  the  fart  that  an  accused  has  not  been  fornuiUy  arretted,  or 
arrested  at  all,  nor  the  fact  th.it,  having  been  once  arrested  and  released  from  arrest,  h* 
has  not  been  re-arrested  before  trial,  can  be  pleaded  in  bar  of  trial,  or  constitute  any 
ground  of  exception  to  the  validity  of  the  proceedings  or  sentence.  Dig.  J.  A.  Qeu., 
169,  par.  1;  ibid..  328.  par.  11. 

61 


62  MILITARY  LAW. 

or  independent  organization  or  detachment  in  the  field.  Where  a  regiment, 
battalion,  or  company  is  inclnded  in  a  post  command,  the  commander  of  the 
post,  rather  than  the  commander  of  the  inferior  organization,  is  the  one  by 
whom  the  arrest  of  a  subordinate  officer  should  be  effected.' 

A  court-martial  has  no  control  over  the  nature  of  the  arrest  or  other 
status  of  restraint  of  a  prisoner  except  as  regards  his  personal  freedom  in 
its  presence.  Neither  the  court  nor  the  president  can  place  an  accused 
person  in  arrest  if  he  be  not  already  in  that  status;  nor  can  the  court,  even 
with  a  view  to  facilitate  his  defense,  interfere  to  cause  a  close  arrest  to  be 
enlarged.  The  officer  in  command  is  alone  responsible  for  the  prisoners  in 
his  charge.^ 

Status  of  Arrest. — On  being  placed  in  arrest,  an  officer  resigns  his  sword 
to  the  person  executing  it;  if  this  form  be  omitted  it  is  nevertheless  consid- 
ered to  have  taken  place,  and  hence  originates  the  custom,  which  is  invaria- 
bly observed,  that  an  officer  in  arrest  appears  without  his  sword. ^  The 
status  of  being  in  arrest  is  inconsistent  with  the  performance  of  any  military 
duty,  and  an  officer  in  that  situation  is  therefore  without  power,  during  the 
pendency  of  his  arrest,  to  exercise  military  command,  or  even  to  perform 
any  of  the  duties  incident  to  his  rank  or  station.  The  imposition  of  arrest, 
however,  affects  in  no  manner  the  right  of  an  officer  or  soldier  to  receive 
the  pay,  allowances,  or  emoluments  of  his  rank  in  the  military  service." 

An  officer  in  arrest  has  no  right  to  demand  a  court-martial  either  on 
himself  or  others;  the  commanding  general,  or  other  officer  competent  to 
order  a  general  court-martial,  being  the  judge  of  its  necessity  or  propriety. 
Nor  has  an  officer  who  may  have  been  placed  in  arrest  any  right  to  demand 
a  trial,  or  to  persist  in  considering  himself  in  arrest,  after  he  shall  have  been 
released  by  proper  authority.^  An  officer  is  in  no  case  entitled  to  demand 
to  be  arrested." 

An  officer  under  arrest  will  not  make  a  visit  of  etiquette  to  his  com- 
manding officer,  or  call  on  him,  unless  sent  for;  and  in  case  of  business  he 
will  make  known  his  object  in  writing.  It  is  considered  indecorous  in  an 
officer  in  arrest  to  appear  at  public  places.' 

Limits  of  Arrest. — Unless  other  limits  are  specially  assigned  him,  an 
officer  in  arrest  must  confine  himself  to  his  quarters.     It  is  generally  nnder- 

'  Dig.  .7.  A.  Gen.,  170,  par.  2  ;  par.  897,  A.  R.,  1895. 

«  Dig.  J.  A.  Gen.,  314,  par.  5;  ibid.,  328,  par.  11. 

'  Macomb,  ^19.  An  officer  in  arre.st  will  not  wear  a  sword  nor  visit  oflBcially  his 
commanding  or  other  superior  officer  unless  directed  to  do  so.  His  applicalious  and 
requests  of  every  nature  will  be  made  in  writing.     Par.  901,  A.  R.,  1895. 

On  the  march,  field-officers  and  non-commissioned  staff-officers  in  arrest  will  follow  in 
the  rear  of  their  respective  regiments,  and  company  officers  and  non-commissioned  offi- 
cers in  arrest,  in  rear  of  their  respective  companies  unless  otherwise  specially  directed. 
Par.  902,  A.  R.,  1895. 

*  Ibid.,  171,  par.  8. 

»  Macomb,  Sjg  28.  29      See,  also,  S  27,  ibid. 

*  Dig.  J.  A.  Gen.,  169,  par.  1. 

'  Ibid.,  §  30.     See,  also,  paragraphs  900-902,  Army  Regulations  of  1895. 


AliREST  AND   COyFfXEMENT.  63 

stood,  indeed,  that  he  can  go  to  tlie  mess-house  or  other  place  of  necessary 
resort.  It  is  not  unusual,  liowever,  for  the  commander  to  state  in  the 
order  of  arrest  certain  limits  within  which  the  otticer  is  to  be  restricted,  and, 
except  in  aggravated  cases,  these  are  ordinarily  the  limits  of  the  post  where 
he  is  stationed  or  held.  An  officer  or  soldier,  thougii  retained  in  close 
arrest,  should  be  i)ermitted  to  receive  such  visits  from  his  counsel,  witnesses, 
etc.,  as  may  be  necessary  to  enable  him  to  prepare  his  defense.' 

Although  the  Articles  of  War  make  no  mention  of  any  difference  in  the 
nature  of  the  arrest  in  order  to  trial,  still  a  dilference  is  established  by  the 
custom  of  the  Army,  according  to  the  degree  or  measure  of  the  crime;  an 
officer  accused  of  a  capital  crime,  or  of  any  offense  to  which  the  penalty 
attached  is  so  severe  as  to  excite  a  natural  temptation  to  escape  from  justice, 
should  be  detained  in  a  state  of  confinement  as  secure  as  the  closest  civil 
imprisonment.'  If  the  offense  be  of  a  lighter  nature,  the  presumption  is 
that  the  officer  whose  character  is  thus  impeached  must  be  solicitous  to 
obtain  a  judicial  investigation  of  his  conduct,  and  he  is  therefore  generally 
allowed  to  be  in  arrest  at  large;  that  is,  without  his  sword,  but  on  his  word 
of  honor  to  await  the  issue  of  a  trial  or  his  enlargement  by  proper  authority. 
The  degree  and  measure  of  the  arrest  must,  however,  be  entirely  at  the  dis- 
cretion of  the  commanding  officer,  who  will  in  all  cases  regulate  his  conduct 
by  the  particular  circumstances  of  the  case  and  by  the  dictates  of  propriety 
and  humanity.' 

Breach  of  Arrest. — The  Goth  Article  of  War  contains  the  requirement 
that  "  an  officer  who  leaves  his  confinement  before  he  is  set  at  liberty  by  his 
commanding  officer  sliall  be  dismissed  the  service,"  An  offense  in  violation 
of  this  Article  is  only  committed  when  an  officer  confined  in  "  close  arrest  " 
to  his  quarters  leaves  the  same  without  authority.  This  clause  of  the 
Article,  being  highly  penal  in  character,  is  strictly  construed,  and  for  this 
reason  a  breach  of  a  mere  formal  arrest,  or  of  any  arrest  not  accompanied  bv 
confinement  to  quarters,  would  be  an  offense  not  within  this  Article  but 
under  Article  02.'  The  mere  doing  of  an  act  prohibited  by  the  status  of 
arrest,  but  without  intent  to  violate  the  terms  of  the  Article,  such  as  the 
wearing  of  .a  sword  through  inadvertence,  or  the  like,  constitutes  a  construc- 
tive breach  of  arrest,  which,  though  reprehensible  or  even  punishable,  does 
not  constitute  the  offense  described  in  the  Article/ 


'  Dig.  .1.  A.  Gen.,  170.  p;ir    3. 
1  ■- 


No  court-mail iul.  iniliiaiy  commander,  or  other  militar}'  authority  is  empowered  to 
accept  bail  for  tlie  appearauce  of  an  arrested  party  or  to  release  a  prisoner  on  bail.  Bail 
i.s  wholly  unknown  to  the  military  law  and  practice  ;  nor  can  a  court  of  the  United 
States  urant  bail  in  a  military  case.     Ibid.,  177. 

'  Macomb,   ^  ','0. 

*  Dig  .].  A.  Gen.,  78.  par.  1.     See,  also.  par.  2  and  par.  4.  ibid. 

'  Where  an  officer  in  clo.se  arre-st  was  i)ermitted  by  his  coinman-iinL"-  officer  to  leave 
temporarily  his  contiuement,  fuld  that  his  delaying  his  return  for  a  brief  period  bevond 
the  time  fixed  therefor  did  not  properly  constitute  an  offense  under  this  Article.  Jbid.. 
par.  3. 


64  MILITARY  LAW. 

Termination  of  Arrest. — An  arrest  lawfully  imposed,  can  only  be  termi- 
nated by  the  commanding  officer  who  imposed  it,  or  by  his  superior  or  suc- 
cessor in  office.  If  the  arrest  be  imposed  with  a  view  to  trial,  the  arrest  is 
terminated  by  the  proper  reviewing  authority  in  his  action  upon  the 
proceedings  of  the  court-martial;  the  arrest  ceasing  when  the  sentence 
becomes  operative,  unless  sooner  terminated — as  in  a  case  of  acquittal,  for 
example — by  the  officer  ordering  the  court. 

Restrictions  upon  the  Duration  of  Arrests. — With  a  view  to  place  a 
limitation  upon  the  power  to  continue  an  officer  in  the  status  of  arrest,  and 
to  prevent  abuses  in  its  exercise,  the  TOtli  Article  of  War  provides  that  "  no 
officer  or  soldier  put  in  arrest  shall  be  continued  in  confinement  more  than 
eight  days,  or  until  such  time  as  a  court-martial  can  be  assembled."  The 
71st  Article,  however,  contains  a  more  elaborate  restriction  upon  the  author- 
ity to  arrest  in  its  requirement  that  "  when  an  officer  is  put  in  arrest  for  the 
purpose  of  trial,  except  at  remote  military  posts  or  stations,  the  officer  by 
whose  order  he  is  arrested  shall  see  that  a  copy  of  the  charges  on  which  he 
is  to  be  tried  is  served  upon  him  within  eight  days  after  his  arrest,  and  that 
he  is  brought  to  trial  within  ten  days  thereafter,  unless  the  necessities  of  the 
service  prevent  such  trial;  and  then  he  shall  be  brought  to  trial  within 
thirty  days  after  the  expiration  of  said  ten  days.  If  a  copy  of  the  charges 
be  not  served,  or  the  arrested  officer  be  not  brought  to  trial,  as  herein  re- 
quired, the  arrest  shall  cease.  But  officers  released  from  arrest  under  the 
provisions  of  this  Article  may  be  tried,  whenever  the  exigencies  of  the  ser- 
vice shall  permit,  within  twelve  months  after  such  release  from  arrest."  ' 

Detaining  officers  or  soldiers  in  arrest  for  long  and  unreasonable  periods 
when  it  is  practicable  to  bring  them  to  trial  is  arbitrary  and  oppressive,  and 
in  contravention  both  of  the  letter  and  spirit  of  this  Article.  Whether  the 
delay  in  any  case  is  to  be  regarded  as  so  far  unreasonable  as  properly  to 
subject  the  commander  responsible  therefor  to  military  charges,  or  a  civil 
action,  must  depend    upon    the   circumstances   of   the   situation    and    the 

Though  any  unauthorized  leaving  of  his  confinement  by  an  oflacer  in  close  arrest  is 
strictly,  a  violation  of  tlie  Article,  it  would  seem,  in  view   of  the  severe  mandatory  pun- 
ishment prescribed,  that  an  officer  should  not  in  general   be  brought  to  trial  under  thf^ 
same  unless  his  act  was  of  a  reckless  or  deliberately  insubordinate  character.     Dig. 
J.  A.  Gen.,  78,  par.  4. 

It  is  no  defense  to  a  charge  of  breach  of  arrest  in  violation  of  this  Article  that  th" 
accused  is  innocent  of  the  oflense  for  which  he  was  arrested.*  It  is  a  defense,  however, 
that  subsequently  to  the  original  confinement  the  accused  has  been  put  on  duty  or 
allowed  to  go  on  duty,  provkled  that  he  has  not  been  duly  re-arrested  and  re-confined 
before  the  breac;h  assigned.!     Ibid.,  par.  5. 

The  requirement  of  this  Article  that  an  offender  "shall  be  dismissed  "is  held  to  be 
exclusive  of  any  other  punishment.  A  sentence  of  dismissal,  with  forfeiture  of  pay. 
is  unauthorized  and  inoperative  as  to  the  forfeiture,  and  as  to  this  should  be  disap- 
proved.    Ibid  ,  79,  par.  6. 

'  For  a  history  of  this  Article,  see  Article  71  in  the  chapter  entitled  The  Akticlks 
OF  War. 


*  Hougb  (Prac.),  494.  t  Hough  (Prac),  19. 


ARREST  AND   CONFINEMKNT.  65 

exigencies  of  the  service  at  the  time.'  I'^iider  no  circumstances,  however, 
can  an  otlicer  or  enlisted  man  release  himself  from  arrest,  or  terminate  a 
lawfully  im[)osed  status  of  arrest  at  his  own  volition.' 

Arrests  under  the  24th  Article  of  War.— An  exceptional  power  to 
impose  arrests  upon  commissioned  officers  and  to  order  enlisted  men  into 
confinement  is  contained  in  the  requirement  of  the  2-4th  Article  of  War  that 
*'  all  officers,  of  what  condition  soever,  have  power  to  part  and  quell  all 
quarrels,  frays,  and  disorders,  whether  among  persons  belonging  to  his  own 
or  to  another  corps,  regiment,  troop,  battery,  or  company,  and  to  order 
officers  into  arrest,  and  non-commissioned  officers  and  soldiers  into  confine- 
ment, who  take  part  in  the  same,  until  their  proper  superior  officer  \i 
acquainted  therewith.  And  whosoever,  being  so  ordered,  refuses  to  obey 
such  officer  or  non-commissioned  officer,  or  draws  a  weapon  upon  him,  shall 
be  punished  as  a  court-martial  may  direct." 

This  Article,  framed  to  meet  the  grave  emergency  of  serious  frays  or  dis- 
orders in  a  military  command,  is  in  substance  an  application  of  a  well-known 
rule  of  the  common  law  to  the  needs  of  the  military  service.'  The  term 
officer  is  here  given  a  peculiar  statutory  interpretation,  not  recognized  else- 
where in  the  Articles  of  War,  in  that  it  is  applied  to  all  military  })er3on8 
above  the  grade  of  private  soldier.  The  duty  of  determining  the  existence 
of  an  emergency  of  sufficient  importance  to  bring  the  Article  into  operation 


'  Dig.  J.  A.  Gen.,  80.  Compare  Blake's  Case,  2  Maule  &  Sel.,  428:  Bailey  m. 
Waiden,  4  id.,  400. 

*  Though  ail  officer  in  whose  case  the  provisions  of  this  Article  in  regard  to  service 
of  charges  and  trial  have  not  been  complied  with  is  entitled  to  be  released  from  arrest, 
he  is  not  authorized  to  release  himself  therefrom.  If  he  be  not  released  in  accord- 
ance with  the  Article,  he  should  apply  for  his  discharge  from  arrest,  through  the 
proper  channels,  to  the  authority  by  whose  order  the  arrest  was  imposed,  or  ether 
proper  superior.     Die:.  J-  A.  Gen  ,  80.  par.  1. 

The  tern)  "  witliiu  ten  days  thereafter  "  held  to  mean  after  his  arrest.     Ibid.,  par.  2. 

Held  a  sufficient  compliance  with  the  rcquiremetit  as  to  the  service  of  charges  to 
have  served  a  true  copy  of  the  existing  charges  and  speciticatious,  thougli  the  list  of 
witnesses  appended  to  the  original  charges  was  omitted,  and  though  the  charges  them- 
selves were  not  in  sufficient  letral  form,  and  were  intended  to  be  amended  and  redrawn. 
Ibid.,  p.  81,  par.  3. 

The  fact  that  cases  of  officers  put  in  arrest  "at  remote  military  posts  or  stations' 
are  excepted   from   the  application   of  the  Article  does  not  authorize  an  abuse  of  th. 
power  of  arrest  in  these  casis.     And  where,  in  sucli  a  case,  an  arrest,  considering  thu 
facilities  of  commiuiication  with  the  department  headquarters  and  other  circumstances, 
was  in  fact  unreasonal)ly  jirotracied  without  trial,  held  that  the  officer  was  entitled  to  be 
relea.sed  from  arrest  upon  a  proper  application  submitted  for  the  purpose.     Ibid.,  par.  4. 

'It  is  a  primiple  of  ihe  common  law  that  any  bystander  may  and  should  arrest  an 
affrayer.  1  Hawkins,  P.  C,  c  G:^,  s.  11;  Timothy  m.  Simpson.  1  C.  M.  «S:  R..  762.  765; 
Phillips  vs.  Trull,  11  Johns.  487.  And  that  an  otticer  or  soldier  by  entering  the  military 
service  does  not  cease  to  be  a  citizen,  and  as  a  citizen  is  authorized  and  bound  lo  put  a 
stop  to  a  breach  of  the  peace  committed  in  his  presence,  has  been  speciticjilly  held  by  the 
authorities.  Burdett  vs.  Abbott  4  Taunt.,  449;  Bowyer.  Com.  on  Con.st.  L.  of  Eng  , 
499;  Simmons,  t^i-  1096-1100  This  article  is  thus  an  application  of  an  establishe<l 
common-lnw  doctrine  to  the  relations  of  tiie  military  service.  See  its  application 
illustrated  in  the  following  General  Orders:  G  O.  4,  War  Dept..  1843;  do.  63.  De|.i.  of 
the  Tennessee  1863:  do.  104,  Dept.  of  the  Missouri,  1863;  do.  52.  Dept.  of  the  Soutli. 
1871;  do.  92,  id.,  1872. 


66  MILITARY  LAW. 

rests  primarily  upon  the  senior  officer  present  at  the  time  of  its  occurrence; 
in  the  event  of  his  failure  to  act,  the  duty,  but  not  the  responsibility,  passes 
to  the  next  in  rank,  and  so  on,  in  succession.  To  insure  its  efEectual  oi)era- 
tion,  the  Article  imposes  the  duty  of  implicit  obedience  upon  all  military 
persons  present  in  respect  to  such  orders  as  may  be  given  them  in  further- 
ance of  the  purpose  of  quelling  the  disorder. 

Arrests  under  the  25th  Article  of  War.— The  25th  Article  of  War  con- 
tains the  requirement  that  "  no  officer  or  soldier  shall  use  any  reproachful  or 
provoking  speeches  or  gestures  to  another,"  and  authorizes  the  arrest  of  any 
officer  who  makes  use  of  such  speeches  or  gestures.' 

This  Article  confers  no  jurisdiction  or  power  to  punish  on  courts- 
martial,  but  merely  authorizes  the  taking  of  certain  measures  of  prevention 
and  restraint  by  commanding  officers;  i.e.,  measures  preventive  of  serious 
disorders  such  as  are  indicated  in  the  two  following  Articles  relating  to  duels.' 

CONFINEMENT    OF    ENLISTED    MEN. 

How  Executed.— The  arrest  of  an  enlisted  man  is  executed,  or  his 
continemeut  ordered,  by  his  immediate  commander,  or  by  the  officer  who 
has  observed  the  commission  of  a  military  offense;  in  which  case  the 
fact  of  confinement  will  be  immediately  reported  to  the  commander  of 
the  company  or  detachment  to  which  the  offender  belongs.'  The  con- 
finement of  an  enlisted  man,  though  required,  by  regulation  and  by  custom 
of  service,  to  be  ordered  by  a  commissioned  officer,  may  be  executed  by  a  sub- 
ordinate or  by  any  duly  authorized  military  person,  as  by  a  non-commissioned 
officer  or  by  a  sentinel.  Except  as  provided  in  the  24th  Article  of  War,  or 
when  restraint  is  necessary,  no  soldier  will  be  confined  without  the  order  of 
an  officer,  who  shall  previously  inquire  into  the  offense.'  By  custom  of  the 
service,  non-commissioned  officers  are  frequently  placed  in  close  arrest  in  the 
same  manner  and  subject  to  the  same  restrictions  as  commissioned  officers.' 

An  enlisted  man  while  in  confinement  awaiting  trial  or  awaiting  the 
result  of  trial  should  not  be  fettered  or  ironed  except  where  such  extreme 


»  "  ^To  officer  or  soldier  shall  use  any  reproacliful  or  provoking  speeches  or  gestures 
to  another.  Any  officer  who  so  offends  shall  be  put  in  arrest.  Any  soldier  who  so 
offends  shall  be  contined.  and  required  to  ask  partion  of  the  party  offended,  m  the 
presence  of  his  commanding  officer."     25111  Article  of  War. 

2  Di".  J.  A.  Gen.,  33.     Compare  Samuels,  372.  .     .  ,      .  ,  » 

3  66th  Article  of  War.  Tlie  word  "  crimes,"  as  used  in  this  Article,  is  construed  to 
mean  serious  military  offenses.  So  that  a  soldier  will  not  i)roperly  be  "confined" 
where  not  charged  with  one  of  the  more  .serious  of  the  military  oflenses;  in  other  words, 
where  charged  only  with  an  offense  of  a  minor  character.  Dig.  J.  A.  Gen.,  i9,  par.  3; 
paragraphs  903-906,  Army  Regulations  of  1895. 

^Paragraph  905,  A.  R.  189.5. 

5  Macomb  ^  21  Should  a  non-commissioned  officer  break  an  arrest  so  imposed,  the 
charge  of  breach  of  arrest  would,  of  course,  be  laid  under  the  62d  Article,  the  provisions 
of  Article  65  applying  exclusively  to  commissioned  officers. 


ARIiKt<l   AMJ   COliFiyEMENT.  67 

means  are  necessary  to  restrain  liini  from  violence,  or  there  is  froofl  reason 
to  believe  that  he  will  attempt  an  escape  and  he  cannot  otherwise  be  securely 

held.' 

Under  existing  regulations  "  soldiers  in  confinenient  awaiting  action  on 
the  iJioceedings  of  their  trials  are  assimilated  to  those  awaiting  trial,  and 
both,  classes  nuiy,  at  the  discretion  of  tiie  commanding  otiicer,  be  employed, 
separately  from  prisoners  undergoing  sentence,  upon  such  labt.r  as  is 
habitually  re(piirod  of  soldiers.  More  severe  or  other  labor  wouhl  not  be 
legal,  uoi-  would  labor  with  a  j)olice  party  consisting  in  whole  or  in  part  of 
men  under  sentence  however  slight  their  sentence  might  be.'  A  soldier  in 
arrest  in  quarters  uuiy  be  required  to  do  fatigue  or  police  work  about  his 
quarters  which  otherwise  other  soldiers  would  have  to  do  for  him."  ' 

Miscellaneous  Provisions  respecting  Confinement.— The  GTth  and  D'Jth 
Articles  of  War  i)rescnbt  a  uietbod  of  ])rocedure  in  respect  to  the  confine- 
ment of  eidisted  men  and  fix  the  conditions  which,  if  performed  by  the 
committing  otiicer,  not  only  justify  the  commander  of  the  guard  in  receiv- 
ing, but,  under  an  appropriate  penalty,  require  him  to  receive  and  safely  hold, 
a  prisoner  tendered  to  l,ini  for  confinement.  The  conditions  referred  to  are 
fully  set  forth  in  the  Articles  in  f|uestion,  which  provide  that  "  no  provost- 
marshal  or  officer  commanding  a  guard  shall  refuse  to  receive  or  keep  any 
prisoner  committed  to  his  charge  by  an  oflficer  belonging  to  the  forces  of  the 
United  States,  provided  the  officer  committing  shall,  at  the  same  time, 
deliver  an  account  in  writing,  signed  by  himself,  of  the  crime  charged 
against  the  prisoner";'  and  "any  officer  who  presumes  without  proper 
authority  to  release  any  prisoner  committed  to  his  charge,  or  suffers  any 
prisoner  so  committed  to  escape,  shall  be  punished  as  a  court-martial  may 
direct."  ' 

Release  of  Enlisted  Men  from  Confinement.— This  subject,  in  its  relation 
to  commissioned  officers,  has  already  been  discussed,  and  it  is  only  necessary 
to  say  at  this  point  that  the  restriction  upon  the  power  to  arrest  which  is 
contained  in  the  TOth  Article  of  War  applies  equally  to  the  cases  of  officers 
and  enlisted  men.  "  The  latter  part  of  this  clause  evidently  allows  a  lati- 
tude which  is  capable  of  being  abused ;  but,  as  in  a  free  country  there  is  no 


•  Disr.  .1    A.  Gen.,  IT!,  par.  10;  par.  909,  A.  R.  1895.     See  G.  O.  55,  A.  G.  O    1S95. 

'  G.'O   44,  Div.  Atlaiiiic,  1S89. 

»  Di-r.  J.  A.  Gen.,  171,  pur.  11;  i>!ir.  9(7,  A.  R.  1895. 

Soldiers  held  in  military  arrest,  while  they  may  be  .subjected  to  such  lestrauit  as  may 
be  necessary  to  prevent  their  e.scapinij  or  conunitiiiiir  violence,  cannot  legally  be  ;-ub- 
jected  to  any  punishment.  The  imposition  of  punishment  upon  soldiers  while  thus 
detained  has  been  on  several  occasions  emphatically  denounced  by  department  com- 
manders. See  for  example,  the  remarks  of  snch  connnanders  in  G.  O  2:?.  Dept.  of  the 
East,  1863:  do.  26,  Dept.  of  California.  1866;  do.  23,  Dept.  of  the  Lakes,  lf:<70;  do.  106, 
Dept.  of  Dakota,  1871.  And  compare  remarks  of  Justice  Story  in  Sleere  vs.  Field.  2 
Mason,  516.     Die   J.  A.  Gen.,  79,  p.ir.  1. 

■*67th  Article^of  War. 

«69th  Article  of  War. 


^8  MILITARY  LAW. 

wrong  withoat  a  remedy,  the  military  law  points  out  a  mode  of  redress  for 
all  otticers  and  soldiers  who  conceive  themselves  injured  by  their  command- 
ing officer  which  must  always  be  sufficient  for  restraining  every  act  of 
injustice  or  oppression."  ' 

In  addition  to  the  provisions  already  discussed,  the  68th  Article  of  War, 
with  a  view  to  prevent  arbitrary  imprisonment,  contains  the  requirement 
that  "  every  officer  to  whose  charge  a  prisoner  is  committed  shall  within 
twenty-four  hours  after  such  commitment,  or  as  soon  as  he  is  relieved  from 
his  guard,  report  in  writing,  to  the  commanding  officer,  the  name  of  such 
prisoner,  the  crime  charged  against  him,  and  the  name  of  the  officer  com- 
mitting him;  and  if  he  fails  to  make  such  report,  he  shall  be  punished  as  a 
court-martial  may  direct. "  '  To  the  same  end  the  Army  Regulations  provide 
that  "  all  persons  under  guard  without  written  charges  will  be  released  by 
the  old  officer  of  the  day  at  guard-mounting  unless  specific  orders  to  the 
contrary  have  been  given  in  each  case  by  the  commanding  officer."  ' 


'  Macomb,  §  22. 

'  68th  Arlicle  of  War. 

'  Paragraph  908,  Army  Regulations  of  1895. 


chaptp:r  VII. 

CHARGES   AND   SPECIFICATIONS. 

The  Charge. — The  instrument  in  which  the  military  offense  against  an 
accused  person  is  set  forth  (corresponding  to  the  indictment  in  criminal  pro- 
cedure) is  called  the  chary e.'  Unlike  the  indictment,  liowever,  a  military 
charore  is  composed  of  two  parts,  the  charge  proper,  in  which  the  particular 
olfense  is  alleged  in  general  terms,  and  the  specification,  in  which,  as  its  name 
implies,  the  facts  constituting  the  offense  charged  are  fully  and  sufticiently 
stated.  An  accusation  against  an  officer  or  soldier  not  thus  separated  in 
form  would  be  irregular  and  exceptional  in  our  practice,  and  till  amended 
would  not  be  accepted  as  a  proper  basis  for  proceedings  under  the  code.' 

Forms  of  Charges. — While  the  same  particularity  is  not  called  for  in  mili- 
tary charges  which  is  required  in  criminal  indictments,  there  are  certain 
essential  conditions  which  must  be  complied  with  in  their  preparation. 
These  are:  (1)  that  the  charge  shall  be  laid  under  the  proper  Article  of 
War,  or  other  statute;  ('-i)  that  such  charge  shall  set  forth  in  the  specifica- 
tion facts  sufficient  to  constitute  the  particular  offense.  This  is  best  accom- 
plished, as  to  the  charge,  by  a  brief  description  of  the  offense,  wherever 
practicable  in  the  words  of  the  Article  under  which  it  is  charged,  adding  the 

phrase  "  in  violation  of  the Article  of  War,"  or  other  statute  describ- 

iuo-  the  offense.  "  Desertion,  in  violation  of  the  47th  Article  of  War," 
"  Sleeping  on  post,  in  violation  of  the  ;39th  Article  of  War,"  ''  Being  a  spy, 
in  violation  of  Section  1343  of  the  Revised  Statutes  of  the  United  States," 
are  examples  of  the  proper  forms  of  words  appropriate  to  be  used  in  such 
allegations.'' 


'  Dig.  J.  A.  Gen.,  224,  par.  1.     See,  also,  Manual  for  Courts-martial,  pp.  15-20. 

In  our  practice,  unlike  that  of  the  Ensrlish  courts-martial,  a  military  chartre  properly 
consists  of  two  parts,  the  technical  "charu:e"and  the  "speciticatiou."  The  former 
designates  by  Its  name,  particular  or  general,  the  alleged  olfense  ;  the  latter  sets  forth 
the  facts  supposed  to  constitute  such  oilense.     Dig.  J.  A.  Gen.    2'34,  par.  1. 

'  Dig.  J.  A.  Gen.,  225.  par.  2.  In  regard  to  the  proper  form  for  a  military  charge, 
Atlv.-Cn'ii.  Cushing  (7  Opiiis.,  603)  says:  "There  is  no  oiu-  of  exclusive  rigor  and 
necessity  in  which  to  state  military  a<'CUsntions."  He  adds  further:  "Trials  by  courl- 
mariial  are  governed  by  the  nature  of  the  service,  which  demands  intelligible  precision 
of  laiiiruage,  but  rei^ards  the  substance  of  things  rather  than  their  forms  .  .  Tiie 
most  biild  statement  of  tlic  facts  alleged  as  constitutinsr  the  offense,  provided  the  legal 
olTiMisf  itself  be  distinctively  and  accurately  dci^crihed  in  such  terms  of  precision  as  the 
rules  of  military  jurispiudt-nce  require,  will  be  tenable  in  court  martial  proccrilings.  and 

69 


70  MILITARY   LAW. 

Specifications. — The  requirement  above  stated  in  respect  to  the  specifica- 
tion is  fiiltilled  by  a  compliance  with  the  following  conditions:  (1)  the 
offender  should  be  identified  and  described  as  a  member  of  the  military- 
establishment  or,  if  a  civilian,  as  a  person  amenable  to  military  jurisdiction; 
(•2)  the  facts  constituting  the  essential  elements  or  ingredients  of  the 
offense  should  be  sufficiently  set  forth;  and,  (3)  where  intent  is  an  essential 
ingredient  of  the  offense,  there  must  be  an  allegation  of  such  criminal  intent 
in  the  specification:  this  is  accomplished  by  the  use  of  the  words  "willfully," 
"  knowingly,"  "  feloniously,"  "  corruptly,"  or  other  terms  of  like  import,' 
according  to  the  circnmstances  of  the  particular  case. 

These  precautions  are  necessary  not  only  to  apprise  the  accnsed  of  the 
offense  charged  against  him,  but  for  the  purpose  of  showing,  affirmatively, 
that  the  person  mentioned  in  the  charges,  as  w^ell  as  the  offense  charged  or 
alleged,  is  within  the  Jurisdiction  of  the  court  convened  for  the  trial  of  the 
case.  "  These  essentials  being  observed,  however,  the  simpler  and  less 
encumbered  with  verbiage  and  technical  terms  the  charge  is  the  better, 
provided  it  be  expressed  in  clear  and  intelligible  English.  However  inarti- 
ficial a  pleading  may  be,  it  will  properly  be  held  sufficient  as  a  legal  basis 
for  a  trial  and  sentence,  provided  that  the  charge  and  specification,  taken 
together,  amount  to  a  statement  of  a  military  offense,  either  under  a  specific 
Article  or  under  the  general  Article,  No.  62."  ' 

The  specification  should  also  be  appropriate  to  the  charge.  A  charge  of 
*'  conduct  to  the  prejudice  of  good  order  and  military  discipline,"  with  a 
specification  setting  forth  a  violation  of  a  specific  article,  is  an  irregular  and 
defective  pleading,  and  so,  of  course,  is  a  charge  of  a  specific  offense  with  a 

will  be  adequate  orioundwork  of  coiivicliou  and  sentence."  So  it  is  observed  by  Atty.- 
Gen.  Wirt  (1  Opins.,  286)  that  "all  that  is  necessary"  in  a  military  charge  is  that  it 
be  "sufficiently  clear  to  inform  the  accused  of  the  military  offense  for  whicii  he  is  to 
be  tried,  and  to  enable  him  to  prepare  his  defense."  And  see  Tyller,  209  ;  Kennedy,  69. 
It  is  ably  ren\arked  by  Goidd  (Pleading,  p.  4)  that  "all  jileuding  is  essentially  a  logical 
process";  ami  that,  in  analyzing  a  correct  pleading,  "if  we  take  into  view  with  what 
is  expressed  what  is  necessarily  supjiosed  or  implied,  we  shall  find  in  it  the  elements  of 
a  good  syllogism."  But  it  can  hardly  be  exi)ected  that  military  charges  in  general  will 
stand  this  tfest. 

'  Home  military  offenses,  as  defined  in  the  Articles  of  War  or  the  statutes  creating 
them,  contain  no  reference  to  an  intent  ;  under  this  head  fall  sleeping  on  post,  signing  a 
false  certificate,  under  the  13th  Article,  and  disrespect  to  a  commanding  officer,  under 
Article  20  ;  in  such  cases  it  is  not  nece.s.sary  to  allege  a  particular  intent, Or  indeed  any 
intent  whatever,  or  to  establish  any  intent  in  evidence  at  the  trial.  In  other  cases  a 
specific  intent  is  described  in  the  Article  defining  the  offense  ;  of  this  the  offenses  defined 
in  the  5th,  8ih,  14th,  and  45th  Articles  are  examples,  all  of  which  offenses  must  be 
"knowingly"  comnn'tled  in  order  to  warr.ant  a  conviction  ;  so,  too,  the  offenses  defined 
in  the  15th  and  HJth  Articles  must  be  "willfully"  committed.  Crimes  at  common  law, 
however,  of  whi'h  some  are  enumerated  in  the  58th  Article,  must  be  charged  and  proved 
with  the  particular  intent  which  is  attributed  to  them  at  common  law,  as  modified  by 
statute  in  the  State  in  which  they  were  committed.  The  word  "feloniously  "  is  properly 
used,  as  descriptive  of  the  intent,  when  the  act  constitutes  an  offen.se  punishable  by 
imprisonment  in  a  State  prison  or  penitentiary  under  the  ordinary  criminal  code, 
rilthougli,  as  a  matter  of  militarv  pleading,  it  is  not  essential  if  the  offense  is  otherwise 
sufiicienlly  set  forth.  Indeed  it  is  only  as  a  matter  of  precaution  with  respect  to  the 
98lii  Article  of  War  that  the  word  is  used. 

■'  Dig.  J.  A.  Gen.,  224,  par.  2. 


CHARGES  AND  SPECIFICATIONS.  71 

specification  describing  not  that  but  a  different  specific  offense,  or  a  simple 
disorder  or  neglect  of  duty.' 

Exclusion  of  Evidence  from  Specifications. — It  has  been  seen  that  the 
specilicati(ju  siioidd  cuiituiu  a  statenieut  of  tlie  facts  constituting  the  otfense 
— not  tlie  evidence  by  which  such  facts  are  supported.  Every  olfense, 
whether  military  or  civil,  is  made  up  of  certain  elements  of  fact,  that  is,  of 
certain  acts  or  omissions  which,  combined  with  a  particular  intent,  consti- 
tute such  offense.  It  is  these  elements  of  fact  and  intent  which  should  be 
alleged  in  the  specification.  "  While,  however,  it  is  in  general  irregular  to 
plead  matter  of  evidence,  there  is  no  objection  to  noting  in  brief  in  the 
specification  the  immediate  result  or  effect  of  the  act  charged,  as  a  circum- 
stance of  description  illustrating  the  character  aiul  extent  of  the  offense 
committed." ' 

General  Terms:  Specific  Articles. — A  charge  expressed  in  too  general 
terms  is  faulty  aiul  imi)crfect;  this  for  the  reason  that  the  accused  is  entitled 
to  know  for  what  particular  act  he  is  called  to  account.'  So,  too,  a  charge 
expressed  in  the  aJteriinlive — either  under  Art.  IT  or  Art.  60 — is  irregular 
and  defective,  and,  upon  motion,  may  be  stricken  out  or  required  to  be 
amended.* 

Where  an  offense  is  clearly  defined  in  a  specific  Article,  it  is  irregular 
and  improper  to  charge  it  under  another  specific  Article.  So  where  the 
Article  in  which  the  off'ense  is  defined  makes  it  punishable  with  a  specific 
2)uni3hment  to  the  exclusion  of  any  other,  it  is  error  to  charge  it  under  an 
Article,  such  as  the  t3"-id,  which  leaves  the  punishment  to  the  discretion  of 
the  court.  On  the  other  hand,  it  is  equally  erroneous  to  charge  under  a 
specific  Article,  making  mandatory  a  particular  punishment,  an  offense 
properly  charged  only  under  Article  62.* 


'  Dig.  J.  A.  Gen.,  p.  228,  par.  12. 

-  Dig.  J.  A.  Gen..  2;52,  par.  21.  Thus  while  a  homicide,  if  amounting  to  murder,  and 
capital  under  Sec.  5339,  Rev.  Statutes,  or  by  the  law  of  the  State,  etc.,  cannot  as  .such 
be  made  the  subject  of  a  military  charge  in  time  of  peace,  yet  a  capital  homicide,  w  here 
ii  has  been  committed  in  connection  with  or  as  a  conse(}uence  of  a  specific  military  offense 
charged  against  the  accused, — as,  for  example,  "mutiny,"  or  "offering  violence  to  a 
superior  officer," — nuiy  profxrly  he  stated  in  tiie  conclusion  of  the  specification ,  as  mat- 
ter of  aggravation  and  as  iiuiicating  the  animus  of  the  accused  or  the  amount  of  force 
employed.     Ihid. 

^  Dig.  J.  A  Gen.,  23(5,  par.  34.  Thus  a  speciticalion  under  Art.  6',',  in  a  case  of 
an  othcer.  which  set  forth,  not  a  specific  act  of  offense,  but  an  habitual  course  of  con- 
duct as  iiuapacitatiiig  the  accused  for  service  or  for  the  performance  of  his  proper 
duty,  held  seriously  defective  and  subject  to  be  stricken  out  oti  motion.  For  .such  con- 
duct indeed  tiie  remedy  is  not  by  charge  and  trial,  but  by  retirement  under  Sec.  1252 
Rev.  Sts.     Ibid. 

*  Ibid.,  par   3"). 

'  Ibid  ,  225,  par.  4.  Such  loose  and  indefinite  forms  of  chaige  as  "  fraud," 
"  worthlessness,"  "inefficiency,"  "habitual  drunkenness,"  and  the  like,  will  be 
avoided  by  good  pleaders.  Such  charges  indeed,  in  connection  with  specifications 
setting  forth  actual  military  neglects  or  disorders  (not  properly  chargeable  under  sj^e- 
citic  Articles),  may  be  sustained  as  ecpiivalent  to  charges  of  "conduct  to  the  iinjudice 
of  good  order  and  military  discipline  "  But  a  charge  of  "  worthles'^ness."  with  sp»'citi- 
cations  setting  forth  repeated  instances  of  arrests,  continemeuts   in    the   guard-house,  or 


72  MILITARY  LAW. 

Niunber  of  Charges,  etc. — An  accused  person  may  be  brought  to  trial 
upon  any  number  of  separate  charges  and  specifications;  such  number, 
indeed,  being  limited  only  by  the  number  of  separate  offenses  which  may 
have  been  committed.  Where,  however,  there  are  two  sets  of  charges 
ao-ainst  an  accused,  they  should  if  practicable  be  consolidated,  and  one  trial 
be  had  upon  the  whole,  instead  of  two  trials,  one  upon  each  set.' 

Charges  under  Several  FormB. — The  prosecution  is  at  liberty  to  charge 
an  act  under  two  or  more  forms,  where  it  is  doubtful  under  which  it  will 
more  properly  be  brought  by  the  testimony.'  In  the  military  practice  the 
accused  is  not  entitled  to  call  upon  the  prosecution  to  elect  under  which 
charge  it  will  proceed  in  such  or  indeed  any  case.' 

Allegations  as  to  Persons. — The  accused  should  be  described  in  the 
charges  and  specifications  by  his  true  name,  and  should  be  further  designated 
by  his  correct  rauk  and  station,  or  title  of  office,  in  the  military  service.  It 
is  not  essential  to  state  in  a   specification  the  full  Christian  name  of  the 

trials  and  convictions  for  slight  offenses,  of  the  accuseci,  held  &n  insufficient  pleading  ; 
such  instances  uot  constituting  military  offenses,  but  merely  the  punishments  or  ptnal 
consequences  of  such  offenses.  (What  is  really  called  for  in  such  a  case  is  a  discharge 
of  the  soldier  under  llie  4th  Article  of  War.)  A  specification  averring  a  general  inca- 
pacity induced  by  habitual  intoxication  does  not  set  forth  a  military  offense.  The 
accused  in  such  a  case  should  be  charged  with  the  acts  of  diunkcnness  committed, 
as  separate  and  distinct  instances  of  offense.  Ibid.,  227.  par.  10.  Where  a  specific 
offense  is  charged  \i.e.,  an  offeuse  made  punishable  by  an  Article  olher  than  the  general 
—62d— Article),  and  the  specification  does  uot  state  facts  constituting  such  specilic 
offense,  the  pleading  will  be  insufficient  as  a  pleading  of  that  offense.  Legal  efle<  t 
may,  however,  be  given  to  a  pleading  if  the  charge  and  specification  taken  together 
amount  to  an  allegation  of  an  offense  cognizable  by  a  court-martial  under  Art.  (32. 
And  in  all  cases.— whatever  be  the  form  of  the  charge  or  specification.— if  the  two  are 
not  inconsistent,  and,  taken  together,  make  out  an  aveiment  of  a  neglect  or  disorder 
punishable  mider  this  general  Article,  the  pleading  will  be  sufficient  in  law  and  will 
constitute  a  legal  basis  for  conviction  and  smtence.     Ibid.,  226,  par.  6. 

'  Ibid.,  227,  par.  9.  But  after  the  accused  has  been  arraigned  upon  certain  charges, 
and  has  pleaded  thereto,  and  the  trial  on  the  same  has  been  entered  upon,  new  and 
additional  charges,  winch  the  accused  has  had  no  notice  to  defend,  cannot  be  intro(.uced 
or  the  accused  required  to  plead  thereto.  Such  charges  should  be  made  the  subject  of 
a  separate  trial,  upon  which  the  accused  may  be  enabled  properly  to  exercise  the  right 
of  challenge  to  the  court  and  effectively  to  plead  and  defend.  As  to  the  lurthcr  ob- 
jection to  such  charges  that  the  court  would  not  be^quaiitied  to  try  them  under  its 
oath,  see  The  Arniignment  in  the  chapter  entitled  The  Trtal. 

'  See  General  Orders  No.  71.  A.  G.  O.,  1879. 

'Dig  J  A  Gin.,  227,  par.  8.  So.  too,  where  a  particulnr  act  or  omission  consti- 
tutes a  violation  of  more  than  one  Article  of  War,  as  of  the  60ih  and  61st.  or  the  61st 
and  62d,  the  offeuse  may  be  charged  under  both  ;*  undue  multiplication,  however  of 
charges,  or  forms  of  charge,  is  to  be  avoided  :  thus  charges  should  not  in  general  be 
added  for  minor  offenses  w-'hich  were  simply  acts  included  in  and  going  to  m;ike  up 
graver  offenses  duly  charged.  It  may,  indeed,  sometimes  be  expedient  where  the  of- 
fenses are  slight  in  themselves,  and  it  is  deemed  desirable  to  exhibit  a  contn  ued  course 
of  conduct,  to  wait,  before  preferring  charges,  till  a  series  of  similar  acts  have  been 
committed,  provided  the  period  be  not  unreasonably  prolonged  :  but  in  general  cnargcs 
should  be  preferred  and  brought  to  trial  immediateiy  or  presently  upon  the  commission 
of  the  offenses.  Anything  like  an  accurnnlation,  or  saving  up.  of  charges,  thiough  a 
hostile  animus  on  the  part  of  the  accuser,  is  discountenanced  by  tiie  .sentiment  of  the 
service,  f     Dig.  J.  A.  Gen.,  220,  par.  7. 


*  "  For  the  purpose  of  meeting  the  evidence  as  it,  may  transpire."    StAte  vs.  Bell,  27  Md.,  675. 
+  See  G.  C.  M.  O.  71,  Hdqrs.  of  the  Army,  1879. 


CHARGES  AND   SPECIFICATIONS.  "•'^ 

Accused,  or   other  party  required    to   be    indicated.      Only  euch    name    or 
initial    need    be   given    as  will    be   sutlicient   to    unmiBtakably  identify  the 

party.' 

Allegations  as  to  Time  and  Place. — The  time  and  place  of  the  commie- 
Bion  of  the  offense  cliarged  should  properly  be  averred  in  the  apecification, 
in  order  that  it  may  api)ear  that  the  offense  was  committed  within  the  period 
of  limitation  fixed  by  the  103d  Article,  and  enable  the  accused  to  understand 
wliat  particular  act  or  omission  he  is  called  upon  to  defend.'  A  reasonably 
exact  allegation  of  the  time  is  also  important  in  some  cases — especially  those 
of  desertion  and  absence  without  leave — in  order  that  the  accused,  if  subse- 
quently brought  to  trial  for  the  same  offense  or,  what  is  the  same  thing  in 
law,  for  an  offense  included  in  the  original  offense,  may  be  enabled  (by  a 
production  and  exhibition  of  the  record)  properly  to  plead  a  former 
acquittal  or  conviction  of  that  offense.' 

Where  the  exact  time  or  place  of  the  commission  of  the  offense  is  not 
known  it  is  frequently  preferable  to  allege  it  as  having  occurred  "no  or 
about"  a  certain  date  or  time,  or  "  at  or  near  "  a  certain  locality,  rather 
than  to  aver  it  as  committed  on  a  particular  day  or  between  two  sperified 
days,  or  at  a  particular  place.  There  is  no  definite  construction  to  be  placed 
upon  the  words  "  on  or  about "  as  used  in  the  allegation  of  time  in  a  specifi- 
cation. The  phrase  cannot  be  said  to  cover  any  precise  number  of  days  or 
latitude  in  time.  It  is  ordinarily  used  in  military  pleading  for  the  purpose 
of  indicating,  in  cases  where  the  exact  day  cannot  well  be  named,  some 
period,  as  nearly  as  can  be  ascertained  and  set  forth,  at  or  during  which  the 
offenses  charged  are  believed  to  have  been  committed.  And  the  same  is  to  be 
said  as  to  the  use  of  the  words  "  at  or  near  "  in  connection  with  the  aver- 
ment of  place.     These  terms  "  on  or  about  "  and  "  at  or  near  "  are,  how- 


'  Dig.  J.  A.  Gen.,  229,  par.  13.  A  misnaming  or  misdescription  of  the  rank  of  the 
accviseci"  in  the  specilication  should  be  taken  advantage  of  by  e.xcepiion  in  the  nature  of 
a  plea  in  abatement.  Where  not  objected  to,  the  error  is  immaterial  after  sentence, 
provided  the  accu.sed  is  sufficiently  idcntitied  by  the  testimony,  etc.  *        _ 

Where  a  specification  to  a  cliarge  preferred  by  a  superior  against  an  inferior  officer, 
instead  of  referring  to  the  former  in  the  third  person,  alleged  that  the  accused  addressed 
abusive  language  to  "me,"  and  committed  an  assault  upon  "me."  without  naming  or 
otherwise  indicating  the  subject  of  the  abuse  or  assault,  held  tliMt  such  a  form,  tliough 
supported  by  some  of  the  English  precedents,  was  not  sanctioned  by  our  jtractice,  and 
that,  on  objection  being  made  to  the  same  by  the  accused,  the  ci-urt  would  properly 
either  require  that  the  specification  be  amended,  or  that,  in  incorporating  the  charge  in 
the  record,  the  name  of  the  preferring  officer  be  added.     Ibid.,  229,  par.  14. 

*  As  to  the  latitude  allowable  in  the  allegation  of  time  in  military  pleadings,  com- 
pare 1  Opins.  Alt.-Gen.,  295,  6. 

In  the  civil  practice  "  nothing  is  better  settled  than  that  proof  of  guilt  is  not  con- 
fined to  the  day  mentioned  in  the  indictment.  It  m.uy  extend  back  to  anj'  period 
jirevious  to  the  finding  of  the  bill  and  within  the  statutory  limit  for  prosecuting  the 
offense."     McBrvde  vs.  State.  34  Ga.,  203. 

3  Dig.  J.  A.  Gen.,  230,  par.  17. 


*  See  the  article  entitled  Pleading  in  the  chapter  relating  to  the  Trial. 


74  MILITARY  LAW. 

ever,  not  unfreqnently  (though  unuecessarily)  employed  in  practice  where 
the  exact  time  or  place  is  known  and  can  readily  be  alleged.' 

Where  the  offense  charged  is  one  of  onis.siofi  the  same  exactness  in  the 
averment  of  time  is  in  general  scarcely  required  as  where  it  is  one  of 
the  commission  of  a  specific  act.  It  is  sufficient  in  the  former  case  to  allege 
that  the  offense  occurred  between  certain  named  dates  not  unreasonably 
separated.' 

Where  time  or  place  is  omitted  to  be  averred,  or  is  averred  without  suffi- 
cient definiteness,  and  the  defect  is  excepted  to  by  the  accused  on  being 
called  upon  to  plead,  the  court  will  properly  direct  that  an  amendment  be 
made.  But  Avliere  no  such  objection  is  interposed  by  the  accused,  the 
proceedings  will  be  sufficiejit  in  law,  provided  the  time  and  place  of  the 
offense  can  be  ascertained  with  reasonable  certainty  from  the  testimony 
taken  in  connection  with  the  specifications.  If  otherwise,  the  proceedings 
will,  where  practicable,  be  returned  to  the  court  for  correction,  or,  where  this 
cannot  be  done,  they  will  in  general  properly  be  disapproved.  And  where 
the  offense  is  alleged  to  have  been  committed  on  a  particular  day  and  the 
evidence  shows  that  it  was  committed  on  quite  a  different  day,  in  such 
case,  provided  time  is  not  of  the  essence  of  the  offense,  and  the  specific  act 
charged  is  sufficiently  identified  by  the  other  testimony,  the  variance  between 
the  allegation  and  the  proof  will  not  constitute  a  fatal  defect,  and  need  not 
induce  a  disapproval  of  the  sentence  where  there  has  been  a  conviction.  A 
return,  however,  of  the  record  to  the  court  for  correction,  if  practicable,  would 
properly  be  resorted  to,  by  the  reviewing  officer,  before  taking  final  action.* 

'  Dig.  J.  A.  Gen.,  230,  par.  18.  Where  a  specification  alleged  that  the  arciised  was 
absent  without  leave  at  various  times  betwef-n  two  dates  twenty  days  apart,  held  that  the 
same  was  defective  and  subject  to  exception  as  being  double,  each  such  absence  being  a 
substantive  and  distinct  offense.*  But  where  the  specification  to  a  charge  of  violation  of 
the  60th  Article  alleged  the  presentation  by  the  accused  of  a  fraudulent  claim  for  rations 
furnished  for  recruits  iind  also  for  lodgings  furnished  for  the  .same  recruits  at  the  same 
time,  held  that  the  spc-eification  related  to  one  transaction  and  was  not,  therefore,  to  be 
necessarily  regarded  as  double  or  defective,  in  view  of  the  liberal  rules  of  pleading  appli- 
cable to  unlitary  charges.     Ibid.,  229,  par  15. 

■Ibid.,  231,  par.  19.  So  an  offense  of  commission  which  probably  was  not  com- 
pleted, or  may  not  have  been  completed,  on  any  particular  day  may  be  similarly 
charged.  Thus  held  that  tlie  allegations  of  time  and"  place  were  sufficient  in  a  specifica- 
tion in  wliich  it  was  set  forth  that  the  offense  charged  (which  consisted  in  an  improper 
disposition  of  public  properly)  was  committed  by  the  accused  "  while  en  ronte  between 
Austin,  Texas,  and  Waco,  Te.xas,  between  the  5"tii  and  25th  days  of  May,  1867."     Ibid. 

But  where  it  was  alleged  in  a  specification  that  the  accused  was  drunk  on  duty  at 
some  lime  or  times  during  a  period  of  seventy  days,  held  that  the  specification  did  not 
give  sufficient  notice  to  the  accused  of  the  specific  offense  which  he  was  required  to 
defi.-nii,  and  was  therefore  uncertain  and  insufficient.!  Ibid. 

=  Dig.  J.  A.  Gen.,  231.  par.  20. 


*  In  the  military  as  in  the  civil  practice  double  pleading— i.e.,  specifications  setting  forth  two  (or 
more)  distinct  oflfenses  (especially  when  oharg:eaV)le  under  different  Articles  of  War)— is  properly  con- 
demned, and  in  sundry  cases  the  conviction  and  sentence  have  been  di>.:approved  on  account  of  the  dn- 
plicity'm  law  of  the  pleadings.  See  (J.  ('.  M.  O.  80,  War  Department,  1875  ;  G.  O.  3,  83,  Department  of 
the  Missouri.  1863;  irf..  49,  Department  of  the  Dhio.  WM. 

+  Compare  cases  iu  CJeneral  Orders  193,  Army  of  tlie  Potomac,  1862  ;  do.  98,  Department  of  New 
Mexico,  1862. 


CHARGES  AND  SPECIFICATIONS.  75 

Documents.  Oral  Statements,  etc. — A  specification  in  alleging  the  viola- 
tion of  an  order  which  has  been  given  in  writing,  or  of  any  written  obligation 
— as  an  oath  of  allegiance,  parole,  etc., — should  preferably  set  forth  the 
writing  verl/ati/n,  or  at  least  state  fully  its  substance,  and  then  clearly  detail 
the  act  or  acts  which  constituted  its  su})posed  violation.'  Oral  statement* 
should,  wlierever  practicable,  be  set  forth  precisely  as  made  or  uttered;  if 
alleged  in  substance,  they  should  be  so  fully  set  forth  as  to  leave  no  doubt 
as  to  their  character  or  purport. 

Amendments  of  Charges. — A  material  amendment  of  a  charge  should 
properly  be  made  before  the  actual  trial.  Where  a  court-martial,  after  the 
trial  was  concluded,  directed  a  specification  to  be  amended  so  as  to  render 
it  more  definite  as  to  time  and  place,  and  then  caused  the  accused  to  be 
arraigned  and  to  plead  over  again,  its  action  was  held  to  be  without  sanction, 
of  law  or  precedent.' 

Withdrawal  of  Charges. — A  withdrawal  of  charges  constitutes  no  lega> 
bar  to  their  being  subsequently  revived  and  re-preferred.  Charges,  however, 
once  formally  withdrawn  will  not  in  general  properly  be  revived  except 
upon  new  material  evidence  being  obtained.  Charges  once  accepted  as  y- 
sutficieut  basis  for  action,  by  the  commander  competent  to  convene  a  court 
for  their  trial,  cannot  properly  be  withdrawn  except  by  his  authority.' 

List  of  Witnesses. — The  Regulations  require  that  charges  formally  pre- 
ferred against  otlicers,  enlisted  men,  or  other  persons  amenable  to  military 
jurisdiction  shall  be  accompanied  by  lists  of  the  witnesses  relied  upon  to 
substantiate  the  charges  so  preferred.  Such  a  list  of  the  proposed  witnesses, 
however,  is  no  part  of  the  military  charge.  In  serving  upon  the  accused  a 
copy  of  the  charges,  it  is  not  essential,  though  the  better  practice,  to  add  a 
copy  of  the  list  of  witnesses  where  one  is  appended  to  the  original  charges. 
Appending  such  a  list,  however,  does  not  preclude  the  prosecution  from 
calling  witnesses  not  named  therein.* 

Joint  Charges. — Properly  to  warrant  i\\Q  joining  of  several  persons  in  the 
same  charge  and  the  bringing  them  to  trial  together  thereon,  the  offense 
must  be  such  as  requires  for  its  commission  a  combination  of  action,  and 
must  have  been  committed  by  the  accused  in  concert,  or  in  pursuance  of  a 


'  Dig.  J.  A.  Gen.,  230.  par.  16. 

-  Ibid.,  286,  par.  38.  Hi>w  far  charges  maybe  amended  by  the  judge-advocate  before 
the  organization  of  the  court  depends  mainly  upon  his  authority,  general  or  special, 
to  maku  amendments.  After  the  arraignment  amendments  of  form  may  always  be 
made,  wiih  the  assent  of  the  accused  or  by  the  direction  of  the  court ;  and  so  may  slight 
amendments  of  substance  not  so  modifying  tlie  pleading  as  to  make  it  a  charge  of  a  new 
and  distinct  offense.  An  amendment  so  substantial  as  materially  to  modify  the  "mat- 
ter" before  the  court  will  not  ia  general  be  autliorized,  and  any  amendment  whatever 
of  substance  should  be  allowed  by  the  court  with  caution  and  subject  to  the  right  of  the 
accused  to  apply  for  a  continuance.     Ibid.,  234,  par.  38. 

'  Ihid.,  2;i4,  par.  27. 

<  ibid.,  235,  par.  29. 


76  MILITARY  LAW. 

common  intent.  The  mere  fact  of  their  committing  the  same  offense 
to<^ether  and  at  the  same  time,  although  material  as  going  to  show  concert, 
does  not  necessarily  establish  it.  Thus  the  fact  that  several  soldiers  have 
absented  themselves  together  without  leave  will  not,  in  the  absence  of  evi- 
dence indicating  a  conspiracy  or  concert  of  action,  justify  their  being 
arraigned  together  on  a  common  charge,  for  they  may  have  been  availing 
themselves   merely  of  the  same  convenient   opportunity  for  leaving  their 

station. ' 

Character  of  Offense,  Military  or  Civil. — As  to  whether  an  act  which  is 
a  civil  crime  is  also  a  military  olfense,  no  rule  can  be  laid  down  which  will 
cover  all  cases,  for  the  reason  that  what  may  be  a  military  offense  under  cer- 
tain circumstances  may  lose  that  character  under  others.  For  instance, 
larcenv  by  a  soldier  from  a  civilian  is  not  always  a  military  crime,  but  it 
may  become  such  in  consequence  of  the  particular  features,  surroundings, 
or  locality  of  the  act.  What  these  may  be  cannot  be  anticipated  with  a 
sweeping  rule  comprehensive  enough  to  provide  for  every  possible  combina- 
rion  of  circumstances.  Each  case  must  be  considered  on  its  own  facts.  But 
if  the  act  be  committed  on  a  military  reservation,  or  other  ground  occupied 
by  the  army,  or  in  its  neighborhood,  so  as  to  be  in  the  constructive  presence 
of  the  army;  or  if  committed  while  on  duty,  particularly  if  the  injury  be  to 
a  member  of  the  community  whom  it  is  the  offender's  duty  to  protect;  or  if 
committed  in  the  presence  of  other  soldiers,  or  while  in  uniform;  or  if  the 
offender  use  his  military  position,  or  that  of  another,  for  the  purpose  of 
intimidation  or  otlier  unlawful  influence  or  object,— such  facts  would  be 
sufficient  to  make  it  prejudicial  to  military  discipline  within  the  meaning  of 
the  ead  Article  of  War.'' 

By  Whom  Preferred.  — Any  officer  may  prefer  charges ;  an  officer  is  not 
disqualified  from  preferring  charges  by  the  fact  that  he  is  himself  under 
charges  or  in  arrest.  Charges  should  be  preferred  to  the  authority 
empowered  to  convene  the  court  for  their  trial  and  signed  by  the  officer 
submitting  them.  The  signing  of  charges,  like  orders,  with  the  name  of  an 
officer,  adding  "  by  the  order  of"  his  commander,  is  unusual  and  objec- 
tionabla.     Where   charges   are   not   signed   voluntarily   by   tlie   officer   by 


•  Dio-  J  \  Geu  232  par.  22.  Desertion,  of  which  the  gist  is  a  certain  personal  intent, 
is  not  ordinarily  cliar-eable  as  a  joint  offense.*  Where  two  or  more  soldiers  have 
deserted  to^rether  as  tlie  result  of  a  ooncerled  plan,  they  may  properly  be  .loinlly  charged 
with  "  cx)nspiraey  to  desert,  to  the  prejudice  of  good  order  and  mihiary  <li^;;P  »'e  ("r 
with  desertion,  in  the  execution  of  a  conspiraey-G.  O  21  A.  G.  O.  of  1891).  or  each 
offender,  in  addition  to  being  charged  with  desertion,  may  also  be  severally  cliarged  witli 
eneaging  in  such  conspiracy.  In  the  absence  of  such  additional  charge,  the  fact  of 
concert  may  of  course  be  put  in  evidence  under  the  charge  of  desertion  as  illustrating  the 
animus  of  the  act  committed.     Jbid. 

'  Manual  for  Courts-martial,  16,  par.  7. 

*  See  G.  O.  78,  War  Dept.,  1872,  issued  by  the  Secretary  of  War  in  accordance  with  opinions,  pre- 
viously given,  of  the  Judge-Advocaw  General. 


CHAJiGES  AND  SPECIFICATIONS.  77 

whom  they  are  preferred,  they  are,  in  practice,  usually  snbecribed  by  the 
judge-advocate  of  the  court.' 

Military  charges,  though  commonly  originating  with  military  persons, 
may  be  initiated  by  civilians;  indeed,  it  is  but  performing  a  public  duty  for 
a  civilian  who  becomes  cognizant  of  a  serious  offense  committed  by  an  officer 
or  soldier  to  bring  it  to  the  attention  of  the  proper  commander.  So  a 
charge  mav  originate  with  an  enlisted  man.  But,  by  the  usage  of  the  ser- 
vice, all  mUitary  charges  should  be  formally  preferred  by,  i.e.,  authenticated 
by  the  signature  of,  a  commissioned  otiicer.  Charges  proceeding  from  a 
person  outside  the  Army,  and  based  upon  testimony  not  in  the  possession  or 
knowledge  of  the  military  authorities,  should,  in  general,  be  required  to  be 
sustained  by  affidavits  or  other  reliable  evidence,  as  a  condition  to  their  being 

adopted.' 

When  Preferred.— Charges  should  be  preferred  so  soon  as  the  commis- 
sion of  the  otfense  has  been  observed  by  or  made  known  to  the  officer  pre- 
ferring them,  or  within  a  reasonable  time  thereafter.  Charges  so  preferred 
carry  with  them  a  i)resumption  of  good  faith  and  the  assurance  that  they 
have  been  brought  in  the  interest  of  discipline,  and  with  a  view  to  their 
being  brought  to  trial  while  the  facts  are  fresh  in  the  minds  of  the  witnesses. 
Charges  unreasonably  delayed  carry  no  such  presumption,  and  the  delay, 
unless  explained,  gives  ground  for  the  belief  that  some  other  consideration 
than  tlie  good  of  the  service  has  been  instrumental  in  their  preparation.' 

Previous  Convictions.— With  a  view  to  enable  the  convening  authority  to 
determine  the  ronn  of  tribunal  to  which  a  particular  set  of  charges  should 
be  referred  for  trial,  and  to  enable  the  court  to  determine  the  proper  measure 
of  punishment  to  be  awarded  upon  conviction,  the  Regulations  require  that 
charges  against  enlisted  men  shall  be  accompanied  by  evidence  of  such  pre- 

'  Ibid.,  233.  p:ir.  24.  An  objection  thjit  a  chai'se  is  not  siViicd  sIduIiI  be  taken  at  the 
arraignment,  when  the  omission  may  be  supplied  by  tlie  judge-advocate's  affixing  his 
signature.  IJy  pleading  the  general  issue  the  accused  waives  the  objection.  Ibid.,  23-5, 
par.  32. 

But  to  be  taken  cognizance  of  by  the  court  it  is  not  essential  that  a  cliarge  should 
be  .signed  by  any  officer.  If.  though  not  so  signed,  it  be  duly  officially  transmitted  by 
the  convening  c  niinander.  or  other  competent  superior  authority  to  the  court,  either 
directly  or  tliryugli  the  juilge-advocate,  "  for  trial."  or  "  for  the  action  of  the  court,"  or 
in  terms  to  such  I'lfect,  it  is  sufficiently  authenticated  for  the  purposes  of  trial,  and  trial 
upon  it  may  be  proceeded  witli  bv  arraisriuneiit  thereon  of  the  accused.     Ibid  ,  par.  33. 

Tiiough  charges  are  prepared  "in  the  Otlice  of  the  .Tudge-Advocate  General,  they  are 
not  to  be'^si'^Mied'by  him.  If  not  signed  by  the  officer  actually  preferring  them,  they  will 
properly  be  authenticited  by  the  signature  of  the  Acting  Judge-Advocate  of  the  Depart- 
ment, o'r,  preferably,  by  the  judge  advocate  of  the  court.     Ibid.,  par.  31. 

■  Dig.  J.  A.  Gen  ,  230,  par.  23 

'  It  is  a  reprehensible  pnictice  to  allow  charges  to  lie  long  dormant  before  being 
preferred.  (Miarses  should  not  lie  delayed,  but  shoulii  be  brought  to  trial  as  soon  as 
practicable  and  while  the  evidence  is  fresh.  A  delay  of  live  monilis  remarhd  uponns 
prejudicial  to  tlie  .admiinstraiion  of  justice  and  unfair  to  the  accused.     Ibid  .  235,  par.  30. 

All  the  oHenses  with  which  an  officer  or  soldier  may  be  at  one  time  chargeable 
should,  if  practicable,  (and  if  the  same  are  sufficiently  grave,)  be  charged  and  brought 
to  trial  together.     Ibid.,  226,  par.  7. 


7S  MI  LIT  AMY  LAW. 

vious  convictions  as  have  been  recorded  against  tlie  accused  during  the 
period  of  twelve  months  next  preceding  the  preparation  and  submission  of 
the  charges. ' 

By  "previous  conviction''  is  meant  a  conviction  by  a  duly  authorized 
militarv  tribunal,  the  sentence  of  which  has  been  approved  by  the  proper 
reviewing  authority."  Such  previous  convictions,  however,  are  not  limited  to 
those  for  offenses  similar  to  the  one  for  which  the  accused  is  on  trial,  as  the 
purpose  in  requiring  them  to  be  submitted  is  to  see  if  the  prisoner  is  an  old 
offender,  and  therefore  less  entitled  to  leniency  than  if  on  trial  for  his  first 
offense.  This  information  might  not  be  fully  obtained  if  evidence  of  previ- 
ous convictions  of  similar  offenses  only  were  laid  before  the  court.  It  has 
no  bearing  upon  the  question  of  guilt  of  the  particular  charge  on  trial,  but 
only  upon  the  amount  and  kind  of  punishment  to  be  awarded,  and  to  this 
end  it  is  proper  that  all  previous  convictions  should  be  known.  As  the 
accused  is  not  on  trial  for  the  offenses,  evidence  of  previous  convictions  of 
which  it  is  proposed  to  introduce,  the  103d  Article  of  War  cannot  be  held 

to  apply.  ^ 

How  Prepared  and  Submitted. — To  accomplish  this  purpose  the  evidence 
of  previous  convictions  must  be  submitted  in  such  form  as  to  ensure  its 
admission  and  consideration  by  the  court  to  which  it  is  referred;  it  should 
therefore  be  prepared  in  accordance  with  the  rules,  hereafter  to  be  explained, 
regulating  the  admissibility  of  documentary  evidence. 

Previous  convictions  by  courts-martial  other  than  the  summary  court  are 
proved  by  the  records  of  the  trials,  or  by  duly  authenticated  orders  promul- 
gating them.  The  proper  evidence  of  previous  convictions  by  summary 
courts  is  the  copy  of  the  record  furnished  to  company  and  other  com- 
manders, as  required  by  paragraph  932,  Army  Kegulations,  or  one  furnished 
for  the  purpose,  and  certified  to  be  a  true  copy  by  the  post  commander  or 
adjutant.* 

Convictions  incurred  during  a  prior  enlistment  are  not  admissible,  ex- 
cept of  desertion,  and  then  only  where  the  accused  is  undergoing  trial  for 
desertion.'  Evidence  of  a  previous  conviction  by  a  civil  court  is  not 
admissible  in  this  procedure;'  nor  is  evidence  of  a  previous  conviction 
admissible  where  the  findings  were  disapproved  by  the  proper  reviewing 
authority.' 


>  Executive  Order  of  March  30,  1898. 

'  Where  the  post  coniinander  acts  as  the  summary  court  no  formal  approval  of  the 
sentence  is  necessary. 

»  Manual  for  Courts-martial,  title  "  Previous  Convictions." 

*  See  Manual  for  Courtsrnarlial,  title  "  Previous  Convictions";  see,  also,  par.  929, 
A.  R.  1895. 

'  Dig.  J.  A.  Gen.,  610,  par.  .5. 

«  Ibid.,  611,  par.  6. 

'  Ibid.,  par.  7.  The  term  "previous  conviction"  as  employed  in  the  Executive 
Orders  respecting  maximum  punishments  means  a  conviction  to  which  effect  has  beeu 


CHARGES  Ayn  SPECIFICATIONS.  79 

Statement  of  Service:  Surgeons  Report. — Charges  against  an  enlisted 
man  forwarded  to  the  authority  competent  to  order  a  general  court-martial 
for  liis  trial  will  also  be  accompanied  by  a  statement  of  service  in  the  pre- 
scribed form,  setting  forth  the  dates  of  his  present  and  former  enlistments, 
the  character  upon  each  of  the  discliarges  given  liim,  and  the  date  of  his 
confinement  for  tiie  offenses  alleged  in  the  charges.  This  statement  is  in- 
tended simply  for  the  information  of  the  convening  authority  and  will  not 
be  introduced  in  evidence,  nor  made  part  of  the  record  of  the  trial,  but  will 
be  returned  to  the  convening  authority  with  the  record." 

In  case  of  a  deserter  the  surgeon's  report  as  to  his  physical  fitness  for 
service,  required  by  par.  121  of  the  Army  Regulations,  will  also  be  for- 
warded.' 

Submission  of  Charges. — Charges  preferred  by  commissioned  officers  are 
submit  led  to  the  otlicer  authorized  by  law  to  convene  a  court  for  their  trial; 
if  tiie  officer  preferring  them  is  serving  at  a  military  post  or  with  a  com- 
mand in  the  field,  they  are  submitted  through  the  jiroper  commanding 
officer,  who  is  required  by  regulations  to  investigate  them  and  to  certify 
that,  in  his  opinion,  the  charges  so  submitted  and  investigated  can  be 
sustained.' 

Action  of  Post  Commander. — The  post  commander  or  the  commanding 
officer  of  an  organization  in  the  field  is  required,  upon  the  receipt  of 
charges  and  specifications,  to  niake  such  personal  investigation  as  is  sufficient 
to  satisfy  him  {a)  wdiethor  the  case  is  one  in  w^hich  a  trial  is  necessary  to 
the  interests  of  discipline;  {b)  if  such  trial  is  believed  by  him  to  be  neces- 
sary, whether  the  evidence  in  support  of  the  charges  is  such  as  to  warrant  a 
conviction.  If  the  case  is  one  triable  by  a  general  court-martial  only  (as 
where  the  charges  are  preferred  against  a  commissioned  officer),  he  will 
forward  the  charges  to  the  proper  convening  authority  accompanied  by  a 
certificate,  in  the  form  of  an  indorsement,  to  the  effect  that  the  charges 
have  been  formally  investigated  by  him,  and  that,  in  his  opinion,  they  can 
be  sustained  bv  the  testimonv  of  witnesses.' 


given  by  the  approval  of  tlie  sentence  by  competent  authority,  and  applies  to  the  records 
of  all  I  rials  except  those  had  by  a  siunmary  court  where  the  post  commander  acts  as  the 
court  and  no  approval  of  the  sentence  is  required  by  law.  Ibid.  See,  also,  Manual  for 
Courts-martial,  p.  19,  note  1.  and  Dii;.  J.  A.  Gea.,  till,  par.  8. 

'  Par   927,  A.  R.  189j.     For  form  see  Appendix. 

'An  enlisted  man  appreiieuded  or  surrendering  as  a  deserter,  and  whose  trial  for 
desertion  is  not  barred  by  the  statute  of  iimitalious,  will  be  examined  by  a  nudical 
ofHcer  at  tlie  post  where  he  is  received,  and  i\  report  of  tliis  examination  will  be  for- 
warded to  department  head(iuarters.  If.  on  aecouht  of  disease,  age,  or  other  permanent 
disahililv,  tlie  man  is  found  until  for  serviee.  the  report,  with  the  department  commander's 
recommendation  thereon,  will  he  forwarded  to  the  Adjutant-General  of  the  Army.  If 
the  examination  shows  that  the  man  is  fit  for  service,  the  department  conunander  will 
bring  him  to  trial  or  restore  him  to  duty  without  trial  as  the  interests  of  the  Goveru- 
ment  may  dictate.     Par.  121,  A.  R.  189"). 

»  Com'manding  officers  will,  before  forwarding  charges,  personally  investigate  them, 
and  by  indorsement  on  the  charges  will  certily  that  they  have  made  such  investigation, 
and  w'hether,  in  their  opinion,  the  charges  can  be  sustained.     Par.  928,  A.  R.  1895. 


80  MILITARY  LAW. 

Charges  preferred  for  offenses  cognizable  by  inferior  courts  will  also  be 
laid  before  the  post  coniniuuder,  who  will  examine  them  as  to  the  rank  of 
the  accused  and  the  nature  of  the  offense.  If  he  thinks  that  the  accused 
sliould  be  brought  to  trial,  he  will  cause  him  to  be  brought  before  the 
summary  court,  wliere  he  will  be  arraigned  and  tried  in  accordance  with 
the  prevailing  court-martial  practice.  If  the  accused,  being  a  non-commis- 
sioned officer,  objects  to  being  tried  by  a  summary  court,  and  requests  a 
trial  bv  a  regimental  or  garrison  court,  his  request  should,  in  general,  be 
granted,  and  the  proper  inferior  court  convened  for  his  trial.  Against 
such  objection  a  summary  court  would,  under  the  statute,  be  without  juris- 
diction to  try  the  case  of  a  non-commissioned  officer,  save  with  the  authority 
of  the  oflBcer  competent  to  order  his  trial  by  general  court-martial.  Such 
authority,  if  granted,  should  be  entered  upon  the  record  in  order  to  show 
that  the  court  acted  with  jurisdiction  in  the  particular  case. 

Action  of  Convening  Authority. — It  has  been  seen  that  the  question 
whether  a  particular  set  of  charges  shall  or  shull  not  be  brought  to  trial  is 
to  be  determined  in  every  case  by  the  proper  convening  authority,  who  is 
responsible  for  the  maintenance  of  discipline,  and  whose  decision  as  to  the 
necessity  or  propriety  of  a  trial  is  final  and  conclusive.'  "  Commanding 
officers  ai'e  not  required  to  bring  every  dereliction  of  duty  before  a  court  for 
trial,  but  will  endeavor  to  prevent  their  recurrence  by  admonitions,  with- 
holding of  privileges,  and  taking  such  stej^s  as  may  be  necessary  to  enforce 
their  orders."  *  If,  therefore,  in  the  opinion  of  the  convening  authority  the 
case  is  one  of  sufficient  importance  to  discipline  to  warrant  its  reference  to 
a  court-martial,  a  proper  military  tribunal  is  appointed,  or  the  charges  are 
referred  to  an  existing  court  for  trial. 

Service  of  Charges  upon  the  Accused. — The  71st  Article  of  War,  which 
regulates  in  part  the  aiTcst  of  commissioned  officers,  requires  the  officer  by 
whose  order  an  accused  officer  has  been  arrested  to  "  see  that  a  copy  of  the 
charges  on  which  he  is  to  be  tried  is  served  upon  him  within  eight  days  of 
his  arrest,  and  that  he  is  brought  to  trial  within  ten  days  thereafter."  By 
custom  of  service  enlisted  men  are  also  entitled  to  be  informed  of  the  nature 
of  the  charges  for  which  they  have  been  confined.     Custom  of  service  also 


'  See  paragrai.li  '.)?,\,  A.  R.  1895. 

'  See,  in  llie  Maimal  for  Cumts-iiiHrtial,  Secliou  IV  of  the  chapter  relating  to  charges 
and  specifications. 

*  In  cases  where  charges  preferred  against  an  officer  are  apparently  susceptible  of  a 
reasonable  explanation  it  is  not  unusual,  especially  where  the  charges  are  preferred  by 
an  inferior  against  a  superior,  to  afford  the  officer  charged  an  opportunity  to  make 
explanation  before  it  be  determined  whether  to  bring  him  to  trial.  Dig.  J.  A.  Gen., 
234,  par.  25. 

Cliarges  proceeding  from  a  person  outside  the  army,  and  based  upon  testimony 
not  in  the  possession  or  knowledge  of  the  military  authorities,  should  in  general  be 
required  to  be  sustained  by  affidavits  or  other  reliable  evidence  as  a  condition  to 
their  being  adopted.     Ibid.,  "ido,  par.  2'd. 

*Par.  930,  A.  R.  1895. 


CUARGE8  AND  SPECIFICATIONS.  81 

makes  it  the  duty  of  tlie  judge-advocate  to  furnish  the  accused  with  a  copy 
of  the  charsjes  upon  which  he  is  to  be  tried,  within  a  reasonable  time 
previous  to  the  trial.  It  is  thus  seen  that  the  same  duty  is  imposed  upon 
different  officers,  but  for  different  reasons;  and  neither  officer  is  responsible 
for  a  faihire  of  the  other  to  perform  the  duty  thus  imposed.  Should  such  a 
failure  of  duty  occur,  however,  the  rights  of  an  accused  person  cannot  be 
prejudiced  thereby,  since  he  is  entitled  to  receive  a  copy  of  the  charges  and 
specifications  a  sufficient  time  in  advance  of  the  trial  to  enable  him  to  secure 
the  necessary  witnesses,  to  obtain  counsel,  and  to  make  proper  preparations 
for  his  defense.'  Although  the  7Lst  Article  requires  such  service  of  charges 
to  be  made  previous  to  the  trial,  the  statutes  are  otherwise  silent  in  this 
regard,  and  it  can  only  be  said  in  general  terms  that  such  time  must  be 
reasonable  in  amount  and  sufficient,  as  above  stated,  to  enable  him  to  ad- 
equately prepare  his  defense.  Should  the  time  allowed  be  insufficient, 
however,  that  fact  should  be  m  ide  the  ground  of  an  application  to  the  court 
for  postponement,  under  the  93d  Article,  or  to  the  convening  authority  for 
a  reasonable  delav  in  bringing  the  case  to  trial. 


>  In  the  ciiniiiuil  practice  of  the  United  States  courts  an  indictment  for  treason  must 
be  served  upon  the  accused  three  entire  days  previous  to  the  trial  ;  indictmeiUs  in  capital 
oases  must  t)e  similarly  served  at  least  two'entire  days  before  the  commencement  of  tiie 
trial.  In  United  rs.  Curtis  (4  Mason,  •,>;t,M  it  was  held  that  the  requirement  of  two  days 
meant  two  days  before  the  trial  of  the  case  by  the  jury,  aud  not  two  days  before  the 
arraigaiueat. 


CHAPTER  VIII. 


THE  INCIDENTS  OF  THE  TRIAL. 


Meeting  of  the  Court-martial. — The  court  assembles  at  the  time  and 
place  meutioned  in  the  convening  order.  The  president  takes  his  place  at 
the  head  of  the  table,  and  the  members  take  seats  on  either  side  of  the 
president,  in  order  of  rank  '  as  named  in  the  order  appointing  the  court. 
The  Judge-advocate  and  the  reporter,  if  there  be  one,  take  their  places  at 
the  foot  of  the  table;  where  seats  are  also  provided  for  the  accused  and  his 
counsel,  and  for  the  particular  witness  who  is  undergoing  examination,^ 

During  the  informal  meeting  of  the  court,  ju'ior  to  the  introduction  and 
arraignment  of  the  accused,  any  preliminary  matters  that  may  seem  to 
demand  its  attention  are  brought  up  and  disposed  of.  The  jndge-advocate 
then  verifies  the  presence  of  the  officers  composing  the  detail ;  absent  mem- 
bers are  noted,  and  such  communications  in  writing  as  have  been  submitted 
in  respect  to  such  absence  are  read  to  the  court  and  are  noted  in  the  record.' 


'  The  relative  rank  of  the  members,  as  determined  by  the  convening  authority  in  the 
order  appointing  them,  is  in  general  to  V)e  regarded  as  final.  Dig.  J.  A.  Gen.,  88,  par.  8  ; 
ibid..  89,  par.  2.  In  view  of  the  repeal  (by  the  Act  of  March  1,  1869)  (if  the  old  61st  Article 
of  War,  an  officer,  except  where  specially  assigned  to  duly  according  to  his  brevet  rank 
by  the  President,  is  no  longer  entitled  to  precedence,  on  courts-martial  or  otherwijse,  by 
reason  of  his  brevet  rank.     Dig.  J.  A.  Gen.,  198,  par.  2. 

*  It  is  one  of  the  most  important  duties  of  the  judge-advocate  to  see  that  adequate 
preparations  are  made  for  the  meeting  of  the  court  and  the  trial  of  the  case  or  cases 
that  are  to  come  before  it  This  includes  the  securing  of  suitable  rooms  and  furniture, 
the  provision,  by  timely  requisitions,  of  the  requisite  stationery,  and  of  such  ckricid  and 
messenger  service  as  will  be  needed  for  the  service  of  the  court,  and,  if  need  be,  a  waiting- 
room  for  the  witnesses.  He  should  also  see  to  it  that  the  witnesses  for  the  day  are 
present  at  the  opening  of  the  trial,  or  that  they  are  in  readiness  whenever  their  testimony 
IS  required. 

-  A  member  of  a  court-martial,  though  strictly  answerable  only  to  the  convening 
authority  for  a  neglect  to  be  present  at  a  se.s.sion  of  the  court,  will  properly,  when  pre- 
vented from  attending,  communicate  the  cause  of  his  absence  to  the  president  or  judge- 
advocate,  so  that  the  same  may  be  entered  in  the  proceedings.  Where  a  member,  on 
reappearing  after  an  absence  from  a  session,  fails  to  offer  any  explanation  of  such 
absence,  it  will  be  proper  for  the  president  of  the  court  to  ask  of  him  such  statemeiit  as 
to  the  cause  of  liis  al)sence  as  he  ma}'  think  proper  to  make.  It  need  scarcely  be  added 
that  the  absence  of  a  member  does  not  affect  the  legality  of  the  proceedings,  provided  a 

82 


TUE  INCIDENTS  OF  THE   TRIAL.  83 

If  the  statutory  quorum  is  present,  the  court  is  now  able  to  enter  upon 
the  trial  of  a  case;  if  less  than  a  quorum  is  ju-esent  the  court  can  transact  no 
business,  but  may  adjourn  from  day  to  day  to  await  the  arrival  of  absent 
members.  Or  it  may  communicate  the  fact  to  the  convening  authority  in 
order  tliat  their  places  may  be  supplied,  or  that  such  orders  may  be  issued  as 
tlie  necessities  of  the  case  may  require.' 

When  the  preliminary  business  has  been  disposed  of,  the  judge-advocate 
announces  that  lie  is  ready  to  proceed  to  the  trial  of  the  accused  person 
named  in  the  convening  order  or,  in  all  cases  after  the  first,  with  the  case 
next  in  order  for  trial. 

Introduction  of  the  Accused. — The  accused  is  then  introduced  by  the 
judge-advocate,  lie  ajjpears  in  uniform,  without  arms,  if  an  officer  or 
enlisted  man,  and  without  irons  or  fetters  in  any  case;  that  is,  perfectly  free 
from  restraint  us  to  his  limbs  and  bodily  movements;  this  in  order  that  he 
may  be  absolutely  free  from  eiiibarrassment  in  making  his  defense."  Except, 
therefore,  in  an  extreme  case,  as  where,  the  accused  being  charged  with  an 
ao-gravated  and  heinous  offense,  there  is  reasonable  ground  to  believe  that  he 
will  attempt  to  escape  or  to  commit  acts  of  violence,  the  keeping  or  placing 

quorum  of  members  remain.     Dig.  J.  A.  Gen.,  494.  par.  3.    See,  also,  7  Opin.  Att.-Geu.. 

101. 

It  does  uot  iuvalidale  the  pioceedii)gs  of  a  court-inailial  tlial  a  member  who  has  beeu 
present  during  a  portion  of  the  trial,  and  lias  then  absented  himself  during  a  portion,  has 
subsequently  resumed  iiis  seat  on  the  court  and  taken  part  in  the  trial  and  judgment. 
Nor  is  the  legal  validity  of  the  proceedings  affected  by  the  adding  of  a  new  member  to 
the  court  pending  the  trial.  In  either  case,  however,  the  testimony  which  has  beeu 
introduced  and  the  material  proceedings  whicii  have  been  had,  while  the  new  or  absent 
member  was  not  present,  should  be  communicated  to  him  before  he  enters  or  re-enters 
upon  his  duties  as  a  member.     Dig.  J.  A.  Gen.,  494,  par.  ;l 

Such  was  the  ruling  of  the  Secretary  of  War  on  Geul.  Hull's  trial.*  and  this  prece- 
dent was  followed  in  repeated,  though  uot  frequent,  cases  during  the  late  war.  For 
a  member,  iiowever,  who  has  been  absent  during  a  sub.stantial  part  of  a  trial  to  return 
and  take  part  in  a  conviction  and  sentence  is  cerUdnly  a  marked  irregularity,  and  one 
which  may  well  induce  a  disapproval  of  the  findings  and  sentence  in  a  case  wliere  there 
is  reason  to  believe  that  the  accused  may  have  suffered  material  disadvantage  from  the 
member's  action.  It  is  understood  of  course  to  be  that  a  member  cannot  legally  resume 
liis  seat  where,  by  his  absenting  himself,  the  court  has  been  reduced  below  five  members. 
It  was  indeed  held  by  AttDniey-General  Berrien  +  that  a  member  of  a  court-martial 
who  has  absented  himself  during  the  taking  of  testimony  is  disqualified  to  take  part  in 
the  sentence.  Attoruey-Generar  Gushing, "however,  held,  in  a  later  opiinon,  J  that 
whether  the  absent  member  should  resume  his  seat  and  act  upon  iiis  return  "must 
depend  upon  his  own  views  of  propriety." 

'  Strictly,  communications  from  the  convening  authority  to  the  court  as  such  (and 
vice  versa)  sliould  be  made  to  (and  by)  the  president  as  its  organ  ;  communications 
relating  to  the  conduct  of  the  prosecution  to  (and  by)  the  judge-atlvocate.  Dig.  J.  A. 
Gen.,  318.  par.  17. 

'  Dig.  J.  A.  Gen.,  3:14,  par.  1.  In  order  that  he  may  not  be  eml)airassed  in  making 
his  defense,  the  accused  jiarty  on  trial  before  a  court-martial  should  be  subjected  to  no 
restraint  other  than  such  as  may  be  necessary  to  enforce  his  presence  or  prevent  dis- 
orderly conduct  on  his  part.     Ibid.     AVhere   an  accused  person  appears  before  a  court- 


*  See  the  reply  dated  March  7.  IRH.  of  the  Secretary  of  War,  Hon.  John  .VrmstronR,  to  the  com- 
muniration  of  the  '•  acting  special  jinlKe  advocate,"  Hon.  .Martin  Van  Buren,  submitting  questions  for 
the  court.    (Forbes'  Trial  of  Hull,  Appendix,  pp.  -'S,  -"J.) 

+  -J  Opin.  Att.-Gen.,  414. 

t  T  ibid.,  98. 


84  MILITARY  LAW. 

of  irons  upon  him  while  before  the  court  will  not  be  justified.  Even  in  such 
a  case  it  will  be  preferable  to  place  an  adequate  guard  over  him.' 

The  fact  that  the  accused  is  an  officer  of  high  rank  should  not  be 
regarded  as  constituting  a  ground  for  allowing  him  any  special  right  or 
privilege  in  his  defense  before  a  court-martial.  The  administration  of  jus- 
tice by  a  military  as  by  a  civil  court  must  be  strictly  impartial  or  it  ceases 
to  be  pure.  All  persons  on  trial  by  the  one  species  of  tribunal,  as  by  the 
other,  are  deemed  to  be  equal  before  the  law.' 

Introduction  of  Counsel. — The  counsel  for  the  accused,  if  he  desires  such 
assistance,  is  then  presented  to  the  court  by  the  judge-advocate.  If  there 
be  objection  to  the  introduction  of  counsel  generally,  or  to  the  particular 
person  offered  by  the  accused  in  that  capacity,  or  if  the  accused  desires  delay 
in  order  to  enable  him  to  secure  the  services  of  a  particular  person  as 
counsel,  such  questions  are  disposed  of  at  this  time.' 

Stenographer. — If  the  case  is  one  of  sufficient  importance  to  warrant  the 
employment  of  a  stenographer,  the  person  employed  in  that  capacity  is  now 
introduced,  and  sworn  to  the  proper  performance  of  his  duties.* 


martial  in  irons,  or  under  any  other  form  of  visible  constraint,  the  court,  through  its 
president,  should  address  the  post  commander,  inviting  his  attention  to  the  fact,  with  a 
view  to  the  removal  of  the  restraint  so  imposed.  It  would  then  become  the  duty  of  the 
post  commander  to  cause  the  irons,  or  other  form  of  restraint,  to  be  removed,  or  to  show 
why  a  necessity  exists  for  the  unusual  restraint  employed.  If  the  reasons  seem  sufficient 
to  the  court,  the  fact  of  restraint,  with  the  reasons  assigned  therefor,  should  be  entered 
at  large  upou  the  record.  If  the  reasons  so  assigned  are  not,  in  the  opinion  of  the  court, 
sufficient  to  warrant  the  unusual  course  pursued,  the  further  trial  of  the  case  should  ])e 
desisted  from,  and  the  matter  presented  to  the  convening  officer  for  his  action.  See  G.  O. 
88,  Dept.  Colorado,  1897.  "The  fact,  however,  that  an  accused  soldier  was  tried  with 
hands  or  feet  in  shackles,  or  with  ball  and  chain  attached,  these  having  been  omitted 
to  be  removed  during  the  hearing  before  the  court,  does  not,  however  reprehensible, 
affect  the  legal  validity  of  the  proceedings  or  sentence."     Dig.  J.  A.  Gen.,  741.  par.  2. 

'  Ibid.;  see,  also,  ibid.,  334,  par.  1;  G.  C.  M.  O.  62,  Dept.  of  the  Missouri,  1877;  do. 
55,  id.,  1879;  and,  as  to  the  civil  practice,  Lee  vs.  State,  51  Miss.,  566;  People  m.  Har- 
rington, 42  Cal.,  175. 

''  Dig.  J.  A.  Gen.,  335,  par.  4. 

5  See  the  title  "  Coiuisel  for  the  Accused,"  under  the  heading  "Officers  of  the  Court," 
in  the  chapter  entitled  The  Composition  of  Courts- martial. 

'^  The  employment  of  a  stenographic  reporter,  under  Section  1203,  Revised  Statutes, 
is  authorized  for  general  courts  only,  and  in  cases  where  the  convening  autliority  con- 
siders it  necessary.  The  convening  authority  may  also,  when  necessary,  authorize  the 
detail  of  an  enlisted  man  to  assist  the  judge-advocate  of  a  general  court  in  preparing  the 
record.     Par.  958,  A.  K   1893. 

Wlien  a  reporter  is  employed  under  Section  1203,  Revi.sed  Statutes,  he  will  be  paid 
nut  to  exceed  $10  a  day  during  the  whole  period  of  absence  from  his  residence, 
traveling  or  on  duty,  which  shall  be  in  full  for  taking  and  trau.scribing  all  notes, 
making  such  number  of  copies  to  be  made  at  one  writing  as  the  judge-advocate  may 
icquire,  and,  unless  otherwise  specially  ordered  by  the  Secretary  of  War,  in  full  for  all 
.services  rendered  and  expense^  incurred  by  the  reporter.  In  special  cases,  when 
authorized  by  the  Secretary  of  War,  stenographic  reporters  may  be  employed  at  rates 
not  exceeding  25  cents  per  folio  (one  hundred  words)  for  taking  and  transcribing  the 
notes  in  shorthand,  or  10  cents  per  folio  for  other  notes,  exhibits,  and  appendices. 
Reporters  will  be  paid  by  the  Pay  Department  on  the  certificate  of  the  judge-advocate. 
Par.  959,  ibid. 

No  person  in  the  military  or  civil  service  of  the  Government  can  lawfully  receive 
extra  compensalioa  for  clerical  duties  performed  for  a  military  court.     Par.  960.  ibid. 


THE  INCIDENTS  OF  THE  TRIAL.  85 

Clerk  to  Assist  the  Judge- Advocate. — lu  cases  in  which  the  services  of  a 
Btenogra]>liic  reporter  are  not  deemed  necessary,  the  Regulations  authorize 
the  convening  authority  to  detail  an  enlisted  man  to  assist  the  judge-advocate 
of  a  general  court-martial  in  the  ])rc|)aratioii  of  the  record.' 

Reading  of  the  Convening  Order. — Tlie  order  convening  the  court, 
together  with  any  orders  subsequently  issued  in  modification  thereof,  is  then 
read  to  the  accused  by  the  judge-advocate,  both  standing;  this  with  a  view 
to  apprise  iiim  of  the  composition  of  tlie  court  and  to  enable  him  to  exercise 
intelligently  the  right  of  challenge. 


CHALLENGES. 

Procedure. — The  composition  of  the  court-martial  having  been  made 
known  to  the  accused  by  the  reading  of  the  convening  order,  together  with 
any  orders  of  subsequent  date  which  have  operated  to  modify  the  composi- 
tion of  the  court  as  originally  constituted,  he  is  asked  by  the  judge-advocate 
whether  he  objects  to  being  tried  by  any  member  named  in  the  order.  If 
his  reply  be  in  the  negative,  the  court  proceeds  at  once  to  the  arraignment; 
if,  on  the  other  hand,  the  accused  has  objection  to  a  member,  he  is  required 
to  exercise  his  right  in  this  respect  by  challenging  but  one  member  at  a 
time.' 

Nature  of  the  Right. — The  right  of  challenge  in  court-martial  procedure 
is  regulated  by  the  88th  Artie l-  of  War,  which  provides  that  "  members  of 
a  court-martial  may  be  challenged  by  a  prisoner,  but  only  for  cause  stated  to 
the  court.  The  court  shall  determine  the  relevancy  and  validity  thereof, 
and  shall  not  receive  a  challenge  to  more  than  one  member  at  a  time."' 


'  Par.  958,  A.  R   1895. 

'  88lh  Article  of  War. 

'  Thi.s  Article  aulborizes  the  exercise  of  the  risrht  of  challenge  before  all  courts 
except  liehi-officeis'  courts  ami  siiminarv  courts.  These  courts  are  not  subject  to  be 
challcni-etl,  because,  being  conipo.sed  of  lint  one  member,  there  is  no  avilhority  provided 
which  is  competent  to  pass  upon  the  validity  of  the  challenge.  Dig.  Opin.  J.  A.  Geu., 
99,  par.  1. 

The  Article  imposes  no  limitation  upon  the  e.xercise  of  the  right  of  challenge  other 
than  that  "  more  than  one  member  shall  not  bo  challenged  at  a  time."  Thus  while  the 
panel,  or  the  court  as  a  whole,  is  not  subject  to  challenge,  yet  all  the  members  may  be 
challeiisred  provided  they  are  challenged  .separately.  The  Article  contains  no  authority 
for  challenging  the  judge-advocate.  Ibid.,  103,  par.  15.  An  otiicer  cainiot  in  general 
fitly  or  becomingly  act  as  judge  advocate  in  a  case  in  which  he  is  personally  interested 
as  accu.ser  or  prosecutor.  Where  the  judge-advocate  had  prepared  the  charges  and  was 
the  accu.ser  in  the  case  and,  moreover,  entertained  a  strong  personal  prejudice  or 
hostility  against  the  accu.sed,  held  that  he  was  ill-chosen  to  act  as  judge  advocate  espe- 
cially in  Ihe  capacities  of  prosecuting  otHci.-d  and  adviser  to  the  court.  A  per-soual 
animus  again.st  the  accused  is  particularly  unbelitting  a  judge-advocate  in  a  case  where 
the  accused  is  not  represented  by  counsel.  One  who  without  personal  prejudice  against 
the  accused,  or  interest  in  his  conviction,  has  signed  the  charges  as  company  commander 
mav  not  improperly  act  as  judge-advocate  in  the  case.      Ibid..  4<)'2,  par.  26. 

"The  court  of  itself  cauuLit  excuse  a  member  in  the  absence  of  a  challenge.    A  nu  mber 


86  MILITARY  LAW. 

The  terms  of  this  statute  restrict  tlie  general  right  of  challenge  in  two 
important  particulars:  (1)  A  member  may  be  challenged  only  for  cause 
stated;  as  a  consequence,  what  are  called  "  peremptory  challenges  "  in  civil 
procedure  are  forbidden  in  the  practice  of  courts-martial;  (2)  He  may  chal- 
leno-e  but  one  member  at  a  time;  from  this  rule  it  results  that  courts-martial 
are  not  permitted  to  entertain,  as  such,  "  challenges  to  the  array,"  that  is, 
objections  to  the  entire  membership.'  If  such  objections  exist,  the  end 
sought  may  be  attained  by  a  plea  to  the  jurisdiction,  to  be  explained 
hereafter. 

How  Exercised. — Every  member  of  a  court-martial  enters  upon  the  per- 
formance of  his  duty  with  the  presumption  of  competency  to  try  any  case 
that  may  properly  be  brought  before  the  tribunal  of  which  he  has  been  con- 
stituted a  member.  If  he  be  objected  to,  therefore,  the  burden  of  proof  rests 
upon  the  party  making  the  challenge  of  establishing  his  incompetency.  The 
result  is  to  raise  an  issue  in  which  both  parties  have  a  right  to  be  heard,  and 
which  must  be  decided  by  the  court  by  a  preponderance  of  testimony;  the 
judgment,  after  hearing,  being  that  the  challenge  is  sustained  and  that  the 
challenged  member  is  excused  from  sitting,  or  that  the  challenge  is  not 
sustained  and  the  challenged  member  will  resume  his  seat.  Pending 
deliberation  upon  the  question  of  sustaining  a  challenge,  the  challenged 
member  withdraws  from  the  session  of  the  court.' 

Classification  of  Challenges. — It  has  been  seen  that  only  what  are  known 
as  "  challenges  for  cause"  may,  under  the  88th  Article,  be  offered  to  the 
membership  of  a  court-martial.  The  challenges  "  for  cause  stated  "  thus 
authorized  may  be  arranged  into  two  classes,  pri7icipal  challenges-  and 
challenges  to  the  favor.  A  principal  challenge  is  one  in  which,  when  the 
ground  of  challenge  has  been  established,  the  challenged  member  is  excused 
from  sitting  as  a  matter  of  course.  A  challenge  to  the  favor  is  one  alleging 
bias,  prejudice,  or  interest  to  exist,  and  which  may  or  may  not  be  sus- 
tained; the  question  depending  upon  the  nature  and  amount  of  the  interest, 
or  prejudice,  as  determined  by  the  admission  of  the  member  or  by  the  evi- 
dence submitted  in  its  support.' 


not  cliallenged  but  consitleiintr  liiinself  disqualified  can  be  relieved  ouly  by  applicatioa 
to  the  convening  authority.     Dig.  Opiu.  J.  A.  Gen.,  103,  par.  1(5. 

'  An  accused  challenged  the  entire  court  on  the  ground  that  the  conveinng  officer 
was  "nccu.ser."  Ueld  properly  overruled;  the  array  cannot  be  challenged  at  military 
law.  The  Article  declares  that  "  the  court  .  .  .  shall  not  receive  a  challenge  to  more 
than  one  member  at  a  time."     Ibid.,  par.  17. 

■'  It  is  not  necessary  (though  usual  and  proper)  for  a  member  to  withdraw  from  tlie 
court-room  on  being  challenged  and  pending  liie  deliberation  on  the  objection.  Ibid., 
par.  11.  See,  also,  in  coimeclion  with  the  subject  of  challenges,  Macomb,  §§  45-49; 
O'Brien,  236;  DeHart.  114-127;  Benet.  79:  Ives,  89;  Winthrop,  279;  Tytler,  115; 
Simmons,  i-  495;  Clode,  Mil.  Law,  111;  Man.  Mil.  Law,  388;  Man.  for  Courts- 
martial,  26,  27;  Dig.  ,J.  A.  Gen..  99-103. 

*  The  distinction  here  noted  is  one  that  is  now  peculiar  to  military  tribunals,  and  is 


THE  INCIDENTS  OF  THE  TRIAL.  87 

"Waiver  of  Challenge. — An  objection  to  the  competency  of  a  member 
must,  as  a  general  rule,  be  brouglit  before  tlie  arraignment;  and  if  the 
accnsed  is  aware  of  its  existence  at  that  time  and  fails  to  bring  it  forward, 
lie  will  be  deemed  to  have  waived  his  right  of  challenge  as  to  such  meuiber 
or  cause  of  objection.'  Should  a  challenge  be  regularly  made  but  improperly 
overruled  by  the  court,  such  waiver  on  the  part  of  the  accused  is  presumed 
not  to  have  been  made,  and  he  is  entitled  to  whatever  benefit  may  accrue  in 
consequence  of  the  erroneous  action  of  the  court.'  Should  the  fact  that  a 
member  is  liable  to  objection,  liowever,  be  developed  at  a  later  stage  of  the 
proceedings,  such  ground  of  objection  being  unknown  to  the  accused  when 
the  opportunity  for  challenge  was  afforded  him,  the  court,  in  the  exercise  of 
a  reasonable  discretion,  may  permit  tlie  objectiorx  to  be  raised  at  any  stage 
of  the  trial.' 

Challenges  by  the  Judge- Advocate. — After  the  right  of  challenge  has 
been  completely  exercised  by  the  accused,  the  judge-advocate  may  interpose 
objections  to  competency  in  behalf  of  the  United  States. 

Incompetency,  How  Established. — The  incompetency  of  a  member  may 
be  established  b}'  the  voluntary  admission  of  the  challenged  member,  by  the 
testimony  of  witnesses,  or  by  the  examination  of  the  member  on  his  voir 
dire.*  If,  upon  the  statement  of  the  ground  of  challenge,  its  sufficiency  or 
propriety  is  admitted  by  the  member,  he  is  excused  from  further  duty  as  a 
meml)er.  To  warrant  this  course,  however,  the  objection  alleged  must  be 
sufficient  in  itself  to  warrant  the  court  in  sustaining  it  had  it  been  established 


rccoijnized  to  exist,  in  respect  to  challenges  to  petit-jurors,  in  but  a  few  jurisdictions  in 
the  United  Slates.  In  tliose  States  in  which  the  distinction  still  exists  principal  challenges 
are  tried  by  the  court,  and  challen<res  to  the  favor  by  triers. 

'  Keyes  vs.  U.  S.,  15 Ct.  Cls.,  532:  Brewers.  Jacobs,  23  F.  R.,  317;  Mina  vs.  Hepburn, 
7  Cr..  290  ;  Pittsticld  vs.  Burnstead,  40  N.  H.,  477  ;  Clark  vs.  Van  Vranckeu,  20  Barber 
(N.  Y.),  278;  Ripley  vs.  Coolidge,  Minor(Ala.),  11;  Glover  vs.  Woolsev,  Dudley  (Ga. ).  85; 
State  vs.  Bunger,  14  La.  Ann.,  461;  Hallock  vs.  Franklin,  3  Met.  (3Iass.),  558;  Wickers- 
liam  vs.  People,  2  111.,  128.  See,  also,  opinion  of  the  Attorney-General  of  January  19, 
1878,  (15  Opins.,  433,)  in  which  the  opinion  expressed  by  the  Judge- Advocate  General  in 
the  most  recent  of  the  cases  upon  which  this  paragraph  is  based— iliat  the  fact  that  one 
of  the  charges  u]wn  which  the  accused  was  convicted  was  preferred  by  a  nieniber  of  the 
court,  who  also  testitied  as  a  witness  on  the  trial  (but  who,  though  clearly  subject  to 
objection,  was  not  challenged  by  the  accused)  could  not  affect  the  validity  of  "the  sentence 
of  dismissal  after  the  same  had  been  duly  contirmed — is  concurred  in  by  the  Attorney- 
General.     Dig.  J.  A.  Gen.,  102,  par.  14,  note  1. 

'  The  fact  that  a  sufficient  cause  of  challenge  exists  against  a  member,  but,  throusrh 
ignorance  of  his  rights,  is  not  taken  advantage  of  by  tlie  accused,  or  if  asserted  is  im- 
properly overruled  by  the  court,  can  affect  in  no  manner  the  validity  in  law  of  the 
proceedings  or  sentence,  though  it  may  sometimes  properly  furnish  occasion  for  a  dis- 
approval of  the  proceedings,  etc..  or  a  remission  in  whole  or  in  part  of  the  sentence. 
Ibid.,  par.  14. 

Where,  before  arraignment,  the  accused  (an  officer),  without  having  personal  knowl- 
edge of  the  existence  of  ground  of  challenge  to  a  member,  bad  credible  hearsay  informa- 
tion of  its  existence,  held  that  he  should  properly  have  raised  the  objection  before  the 
members  were  sworn,  and  that  the  court  wns  not  in  error  in  refusing  to  allow  him  to 
take  it  at  a  subsequent  stage  of  the  trial.     Ibid.,  102,  par.  13. 

'  Ibid.,  pars.  13,  14.       *  For  forni  of  voir  dire,  see  p.  5l(»,  jwst. 


8S  MILITARY  LAW. 

by  the  testimony  of  witnesses.'  If  testimony  be  introduced  in  support  ol 
the  objection,  tlie  court  will  decide,  after  ii  full  hearing,  upon  a  preponder- 
ance of  testimony,  and  will  sustain  the  objection  or  refuse  to  sustain  it  in 
accordance  with  the  weight  of  evidence  submitted.  If  testimony  be  intro- 
duced in  support  of  an  objection,  and  if  such  testimony  is  not  deemed 
sufficient  in  amount  to  warrant  the  court  in  excusing  the  member,  the 
challenged  member  may  be  sworn  on  his  voir  dire,  and  questioned  as  to  his 
competency  to  sit  in  the  trial  of  the  case." 

Grounds  of  Objection.     Principal  Challenges. — The  distinction  between 
principal  challenges  and  challenges  to  the  favor  has  already  been  explained. 
Under  the  former  it  would  constitute  a  valid  ground  of  objection  to  a  mem- 
ber that  he  had  sat  upon  a  previous  trial  of  the  same  case,  or  was  a  member 
of  a  court  of  inquiry  which  had  investigated  the  subject-matter,  or  had  been 
required,  as  a  matter  of  official  duty,  to  investigate  the  circumstances  and, 
as  a  result,  to  sabmib  an  opinion  as  to  whether  the  case  shonld  be  brought  to 
trial.     In  the  former  cases  the  member  has  been  compelled,  by  the  sanction 
of  an  oath,  to  form  an  opinion  upon  evidence  submitted  in  a  legal  investiga- 
tion ; '  in  the  latter  he  has  been  required,  by  the  operation  of  a  lawful  order, 
not  only  to  form,  but  to  give  expression  to,  an  opinion  based  upon  personal 
inquiry  into  the  facts  of  a  particular  case.     For  the  reasons  above  stated,  it 
is  the  duty  of  a  court-martial,  the  ground  of  objection  having  been  shown 
to  exist,  to  excuse  the  member  from  further  attendance  upon  the  court 
during  the  trial  of  the  case. 

The  Accuser;  Material  Witness,  etc. — It  is  ordinarily  a  sufficient  ground 
of  challenge  to  a  member  that  he  is  the  author  of  the  charges  and  is  a 
material  witness  in  the  case.  The  mere  fact  that  he  is  to  be  a  witness  is  not 
in  general  to  be  held  sufficient.'  So,  too,  the  fact  that  a  member  signed  or 
formally  preferred  the  charges  is  not,  of  itself,  a  sufficient  ground  of  objecti(m. 


'  Courts  should  be  liberal  iu  passing  upou  challenges,  bul  should  doI  enterlaiu  an 
objection  which  is  not  specific,  or  allow  one  upon  its  meie  assertion  by  the  accused, 
without  proof  and  in  the  absence  of  any  admission  on  the  part  of  the  member.  A  posi- 
tive declaration  by  tlie  challenged  member  to  the  effect  that  he  has  no  i)rejudice  or 
interest  in  the  case  will  in  general,  in  the  absence  of  material  evidence  in  support  of  the 
objection,  justify  tlie  court  in  overruling  it.     Dii;.  J.  A.  Gen.,  101,  par.  12. 

'  -  Bishop,  Crim.  Proc,  934  ;  Maxwell,  577  ;  Wharton,  Crim.  Proc,  676 ;  Thompson  on 
Trials.  102. 

^  Held  that  the  members  of  a  court-martial  who  had  composed  a  previous  court  by 
which  the  same  accused  had  been  tried  for  the  .same  act,  thougli  under  a  different 
charire,  wen;  all  subject  to  be  set  a.side  on  challenge.     Dig.  J.  A.  Gen.,  101,  par.  10. 

Held  sufficient  ground  of  challenge  to  a  member  of  a  court-maitial  that  he  had  pre- 
viously taken  part  in  an  invosligalionOf  the  same  case  before  a  court  of  inquiry,  though 
such  court  (li(i  not  express  a  formal  opinion.     Ibid.,  par.  8. 

Held  good  ground  of  challenge  to  a  member  of  a  court-martial  in  a  case  of  alleged 
thefi  by  a  soldier  that  such  member  had  been  a  member  of  a  previous  court  of  inquiry 
which  had  iiivesligaled  the  Ciise  and  fixed  the  misappropriatiou  of  the  property  upou  the 
accused.     Ibid.,  par.  9. 

*  Dig.  J.  A.  Gen.,  100,  par.  2. 


THE  lyciDEyrs  of  tue  trial.  89 

since  he  may  have  doue  so  niiiiisterially  or  by  the  order  of  a  superior.  But 
where  a  member,  upon  investigation  or  otherwise,  has  initiated  or  preferred 
the  charges  as  accuser,  or  as  prosecutor  has  caused  them  to  be  brought  to 
trial,  he  is  properly  sul^ject  to  cliallenge. ' 

Opinion. — For  an  opinion  to  disqualify,  it  must  be  positive  and  decided 
in  character  and  must  have  been  formed  after  deliberation  upon  the  facts  in 
the  case.*  In  general  it  does  not  disqualify  if  it  is  based  upon  mere  rumor, 
or  upon  statements  in  newspapers,  if  the  member  is  able  to  say  that  he  can 
give  an  impartial  decision  upon  the  evidence  submitted.'  if,  however,  such 
opinion  has  been  based  upon  conversations  with  witnesses  or  formed  by 
reading  reports  of  testimony,  it  would  operate  as  a  cause  of  disqualification.* 

Bias  or  Prejudice;  Rank  of  Member. — The  law  contemplates  that  each 
member  who  sits  in  the  trial  of  a  case  shall  have  a  mind  entirely  free  from 
bias  or  prejudice  in  respect  to  the  accused ;  if  a  member  has  such  bias  or  preju- 
dice, or  is  interested  in  the  result  of  the  trial,  he  is  not  able  to  act  impartially, 
and  so  should  not  be  permitted  to  pass  upon  the  guilt  or  innocence  of  a 
person  toward  whom  such  bias  or  prejudice  is  entertained."     It  is  not  good 

'  Dig.  J.  A.  Gen.,  100,  par.  3.  Thus,  that  a  member  had  origiuated  and  preferred 
the  charge  for  a  disobedieiife  of  his  own  (u-der  wjis  held  good  cause  of  challenge.  So,  in 
a  case  of  a  trial  for  an  assault  upon  an  officer,  the  fact  that  the  officer  upon  whom  the 
assault  was  committed,  and  who  was  the  prosecuting  witness,  was  a  nieniber  of  the 
court  was  held  to  constitute  complete  cause  of  challenge  to  him  as  member.      Ihid. 

That  a  meniher  is  the  regimental  or  comi^an}'  commander  of  the  accu-sed  does  not 
•per  He  constitute  sufficient  gr(jund  of  challenge.  But  such  ground  may  exist  where  the 
commander  has  preferred  tlie  charges  or  where  the  relations  between  him  and  the 
accused  have  been  such  as  to  give  rise  to  a  presumption  of  prejudice.  Ibid.,  100, 
par.  4. 

'  Reynolds  i'5.  U.  S.,  98  U.  S.,  145;  Armistead's  Case,  11  Leigh  (Va.),  0.^9:  Worndey's 
Case,  10  Gratt.  (Va.),  65S;  Xeeiy  »«.  People,  13  111.,  685;  Slaup  vs.  Commonwealth, "74 
Pa,,  1:  Burr's  Trial,  4i6  ;  Slate  vs.  Rose,  33  Mo,,  346;  Thompson  vs.  Updciiraff  3 
W.  Va  ,  629.  ' 

'  Hopt  vs.  People.  120  U.  S.,  430  ;  Brown  m.  State,  70  Ind.,  576  ;  12  Eng.  &  Amer. 
Cyc.  of  Law.  35.5. 

*  12  Eng.  &  Amer.  Cyc.  of  Law,  355,  356. 

'  Where  a  member  before  the  trial  had  expressed  an  opinion,  based  upon  a  knowledge 
of  the  facts,  that  the  accused  would  be  convicted  whichever  way  he  miijht  plead,  held 
that  he  had  clearly  prejudged  the  case,  and  that  the  court  should  have  sustained  an 
objection  taken  to  him  bj-  the  accused,  althoucrh  upon  beinij  challeuired  he  declared  that 
he  w:is  without  prejudice.  l)i<r.  J.  A.  Gen.,  100.  par.  5.  See  G.  CM.  O  6»)  H  O  A 
1879.  .      .    f.      .. 

A  mere  general  opinion  in  rci^ard  to  the  impropriety  of  acts  such  as  those  char<reil 
against  the  accused,  unaccompanied  by  any  opinion  as'to  his  guilt  or  innocence  on  Uie 
charges,  is  not  a  sufficient  ground  of  oi)jection  under  this  Article.     Ihid..  103.  par.  21. 

A  member,  on  being  ciiallenge  i  for  prejudice,  declared  ihMt  he  did  not  consi(ier  the 
accu-ed  (an  officer)  a  gentleman,  .-ind  would  not  .-issociate  with  li>m,  and  that  he  had 
stated  so;  but  he  added  at  the  same  time  that  he  w.-is  not  preju  Heed  for  or  .acainst  him. 
Held,  especially  as  one  of  the  charges  was  "conduct  unbecoming  an  officer  and  a  gentle- 
man," that  tlie  challenge  was  improperly  overruled  by  the  court.     Ibid..  V'O.  par'e. 

An  accu.sed  objected  to  a  member  on  the  ground  that  some  time  before  he  had  had  a 
disagrei-mint  with  the  member  and  thougiit  that  he  "might  be  prejudiced."  The 
memix  r  declired  that  he  was  conscious  of  no  prejudice  whatever,  lint  that,  on  the 
contrary,  his  feelinss  toward  the  accused  were  friendly.  Held  that  the  court  erred  in 
sustaining  tlie  chnllenge.     Ibid.,  103,  par.  19. 

The  accused  were  Indian  scouts  charged  with  mutiny.     Some  of  the  members  of 


90  MILITARY  LAW. 

grouud  of  challenge  to  a  member,  for  example,  that  lie  is  junior  in  rank  to 
the  accused,  nor  is  it  sufficient  ground  that  the  member  will  gain  a  step  or 
"  file  "  in  the  line  of  promotion  if  the  accused  is  dismissed.  It  is,  however, 
a  sufficient  cause  of  challenge  to  a  member  that  if  the  accused  (an  officer)  be 
convicted  and  sentenced  to  be  dismissed  the  member  will  thereby  be  entitled 
to  immediate  promotion,' 

CONTINUANCES. 

Procedure. — The  organization  of  the  court  having  been  effected  and  the 
accused  and  his  counsel  having  been  introduced,  a  motion  for  a  continuance^ 
that  is,  for  a  dehw  in  proceeding  with  the  trial,  \vill  properly  be  in  order. 
The  subject  of  continuances  is  regulated  by  the  provisions  of  the  93d  Article 
of  War,  which  directs  that  "a  court-martial  shall,  for  reasonable  cause, 
grant  a  continuance  to  either  party,  for  such  time  and  as  often  as  may  appear 
to  be  just:  provided  that  if  the  prisoner  be  in  close  confinement  the  trial 
shall  not  be  delayed  for  a  period  longer  than  sixty  days," 

Such  application  to  entitle  it  to  consideration  must  be  supported  by 
evidence,  usually  in  the  form  of  a  duly  executed  affidavit,  setting  forth  the 
reason  for  the  delay;  if  it  be  to  obtain  the  attendance  of  an  absent  witness, 
for  example,  it  should  distinctly  appear  that  the  witness  is  material  "  and 
why,  and  that  the  accused  has  used  due  diligence  to  procure  his  attendance, 
and  has  reasonable  ground  to  believe,  and  does  believe,  that  he  will  be  able 
to  procure  such  attendance  within  a  reasonable  time  stated."  '^ 

Causes  for  Delay  or  Postponement. — The  sickness  or  enforced  absence  of 
a  party,  or  of  a  material  witness,  is  an  example  of  a  "  reasonable  cause  "  within 
the  meaning  of  the  Article.  The  fact  that  the  charges  and  specifications 
upon  which  an  accused  is  arraigned  difl'er,  in  a  material  particular,  from  those 
contained  in  the  copy  served  upon  him  before  arraignment  may  also  consti- 
tute a  sufficient  ground  for  granting  him  additional  time  for  the  preparation 
of  his  defense.'     It  is  in  general  good  ground  for  a  reasonable  continuance 


tlie  court,  though  disclaiming  any  prejudice  against  the  accused  personally,  were  aware 
that  tliey  were  present  at  the  outl)reak,  and  were  fully  apprised,  from  their  own  personal 
presence  or  knowledge  of  the  circumstances,  that  the  mutiny,  which  had  involved 
homicide,  constituted  a  most  aggravated  offense  of  the  class.  Held  Ihat,  as  tiiese  mem- 
bers could  scarcely  avoid  applying  their  imjireisions  to  the  accused  when  shown  to  he 
connected  with  the  disorder  they  would  fairly  have  been  subject  U)  objeclion  as  triers. 
Dig.  .J.  A.  Gen.,  lOa.  par.  20. 

'  Ihicl..  101,  par.  7.  Whether  the  Iriid  of  an  officer  by  officers  of  an  inferior  ntnk 
can  be  avoided  or  not  is  a  quesiion  not  for  the  accused  or  the  court,  but  for  the  officer 
convening  the  court,;  and  liis  decision  (as  indicated  by  the  detail  itself  as  mode  in  the 
convening  order)  upon  this  point,  as  upon  that  of  the  number  of  members  to  be  detailed, 
is  conclusive.  An  officer,  therefore,  cannot  successfully  challenge  a  member  because 
merely  of  being  of  a  rank  inferior  to  his  own.     Ibid.,  89,  par.  1. 

''  Manual  for  (!ourts-martial,  29,  S  8. 

'  Dig.  J.  A.  Gen.,  109,  par.  4.  Where  after  arraignment  a  material  and  substantial 
amendment  is  allowed  by  the  court  to  be  made  by  the  judge-advocate  in  a  specification. 


THE  INCIDENTS  OF  THE  TRIAL.  91 

that  the  accused  needs  time  to  procure  the  assistance  of  counsel,  if  it  is  made 
to  appear  that  such  counsel  can  probably  be  oljtained  within  the  time  asked, 
and  that  the  accused  is  not  chargeable  with  remissness  in  not  having  already 
provided  liimself  with  counsel.' 

Where  "  reasonable  cause  "  is,  in  the  judgment  of  the  court,  exhibited, 
the  party  is  entitled  to  f>ome  continuance  under  the  Article.  A  refusal, 
indeed,  by  the  court  to  grant  such  continuance  will  not  invalidate  the  pro- 
ceedings, but,  if  the  accused  has  thus  been  prejudiced  in  his  defense,  may 
properly  constitute  good  ground  for  disapproving  the  sentence,  or  for  miti- 
gating or  partially  remitting  the  punishment.' 

SWEARING    OP    THE    COURT-MARTIAL. 

Swearing  of  Members. — The  challenges  offered  by  the  accused  and  by 
the  judge-advocate,   if  any  such   there  be,  having  been  disposed  of,  the 

thj  effect  of  which  amomlment  is  to  necessitate  or  make  desirable  a  further  preparation 
for  iiis  defense  on  the  part  of  tlie  accused,  a  reasoual)le  postponement  for  this  purpose 
will  in  i,H;nera!  proper!}'  l)e  ijranled  bv  the  court       Dis    J.  A.  Gen.,  109,  par.  5. 

'  Ibk  ,  IIU,  par.  G.     Seeralso,  G.  "C.  M.  O.  25,  A.  G.  O.  1x75. 

'^  IbUl.,  109,  par.  2.  In  making  an  application  for  a  continuance  or  posI])onement 
under  tiiis  Article  on  account  of  tlie  absence  of  a  witness  the  conditions  prescribed  in 
section  8,  p.  29,  of  the  Manual  for  Courts-martial  should  in  general  be  substantially 
observed.  But  while  the  court  may  refuse  the  apfilicaiion  if  these  conditions  be  not 
followed  it  may,  in  its  discretion,  refrain  from  insisting  ih;it  the  same  be  .strictly  com- 
plied with,  aiufaccept  a  moditied  form.*  It  slioidd,  however,  in  all  cases  require  that 
the  desired  evidence  appear  or  be  shown  to  be  material  and  nd  merely  cumulative, +  and 
that  to  await  its  production  will  not  delay  the  trial  for  an  unreasonable  period.  It 
should  also,  in  general,  before  granting  the  continuance,  be  assured  that  the  absence  of 
the  witness  is  not  owing  to  any  neglicl  on  the  part  of  the  :.piilicani.  This  feature, 
however,  will  not  be  so  much  insisted  upon  in  military  as  in  civil  cases.|  Ibid..  108, 
par.  1. 

Where  an  accused  .soldier,  by  reason  of  his  regiment  having  been  moved  a  long 
distance  since  his  arrest,  was  sep'arated,  at  his  trial,  from  certain  witnesses  material  to 
his  defense,  held  that  he  was  entitleil  to  a  reasonable  conlinunuce  for  the  purpose  of 
l)rncurinL;-  their  attendance  or  their  dejxjsitions.      Ibid..  109.  par.  o 

Postponements — The  foregoing  procedure  applies  to  continuances,  properly  so  called, 
that  is,  to  delays  during  the  Iri  d  asked  for  and  graiUed,  in  conformity  with  the  provisions 
of  the  98(1  Article  of  War.  If,  in  advance  of  the  tria',  either  party  desires  a  postponement 
of  the  trial  for  any  cause,  "  application  therefor  should  properly  be  made  to  tlieconvening 
authority  beforethe  accu.sed  is  arraigned."  Manual  for  Com  ts-martial,  29.  par.  7.  So, 
too,  if,  liuring  tlie  trial,  extended  delay  becomes  necessary,  that  is.  a  delay  transcending 
the  power  of  the  court-martial  to  grant  under  the  Article,  application  therefor  '•  will,  when 
practicable,  be  made  to  the  authority  appointing  the  court.  When  made  to  the  court, 
and  if,  in  the  opinion  of  the  court,  it  is  well  foun<led,  it  will  be  referred  to  tlie  convening 
authority  to  decide  whether  the  court  shall  be  adjourned  or  dissolved."  Manual  for 
Courts-martial,  29,  par.  8. 

•  It  is  not  the  practice  of  cnirt.s-martial  to  admit  counter-affidavits  from  the  opposite  party  as  to 
what  the  absent  witness  would  testify.  And  as  to  the  civil  practice,  see  Williams  vs.  State.  6  Neljraska. 
334 

+  Compare  People  vs.  Thompson.  4  Cal..  2.3'';  Parker  vs.  State.  5.5  Miss..  414. 

*  A  military  aociisfd  cannot  be  charged  witli  ladies  in  not  procuring  the  attendance  at  his  trial  of  a 
witness  who  is  prevented  from  beinz  present  by  superior  military  authority.  Thus  in  a  case  in  G.  O. 
6.3.  Dept.  or  Dakota,  187^.  an  accused  snldj.^r  wns  held  entitled  to  a  continuance  till  the  return  of 
material  witness»»s  then  alisent  on  an  Indian  expedition. 

It  would  properly  be  so  held  upon  c^immon-law  principles,  even  independently  of  the  positive  terms 
of  the  Article.  In  Rex  vs.  D'Eon.  1  W.  Black..  .511.  it  was  declared  by  Lord  .Mansfield  that  "  no  crime 
is  so  great,  no  proceedings  so  instantaneous,  but  that,  upon  sufficient  grounds,  the  trial  may  be  put 
oft."' 


92  MILITARY  LAW. 

members  of  the  court  and  the  judge-advocate  are  then  duly  and  severally 
sworn;  the  court  and  the  judge-advocate,  together  with  the  accused  and  his 
counsel,  standing  during  the  administration  of  the  oaths.  The  oath  pre- 
scribed by  law  for  the  members  of  the  court-martial  is  administered  by  the 
judge-advocate  in  the  following  form:  *'  You,  A  B,  do  swear  that  you  will 
well  and  truly  try  and  determine,  according  to  evidence,  the  matter  now 
before  you  between  the  United  States  of  America  and  the  prisoner  to  be 
tried,  and  that  you  will  duly  administer  justice,  without  partiality,  favor, 
or  affection,  according  to  the  provisions  of  the  rules  and  articles  for  the 
government  of  the  armies  of  the  United  States,  and  if  any  doubts  should 
arise  not  explained  by  said  articles,  then  according  to  your  conscience,  the 
best  of  your  understanding,  and  the  custom  of  war  in  like  cases;  and  you 
do  further  swear  that  you  will  not  divulge  the  sentence  of  the  court  until 
it  shall  be  published  by  the  proper  authority,  except  to  the  judge-advocate; 
neither  will  you  disclose  or  discover  the  vote  or  opinion  of  any  particular 
member  of  the  court-martial  unless  required  to  give  evidence  thereof,  as  a 
witness,  by  a  court  of  justice  in  due  course  of  law.     So  help  you  God."  ' 

The  84th  Article  requires  that  the  oath  shall  be  taken,  not  by  the  court 
as  a  whole,  but  by  "  each  member."  Where,  therefore,  all  the  members  are 
sworn  at  the  same  time,  the  judge-advocate  will  address  each  member  by 
name,  thus:  "  You,  A  B,  C  D,  E  F,  etc.,  do  swear  that  you  will  well  and 

truly  try,"  etc' 

Swearing  of  the  Judge- Advocate. — The  appropriate  oath  having  been 
duly  administered  to  the  members  of  the  court-martial,  the  oath  prescribed  by 
law  for  the  judge-advocate  is  then  administered  to  that  officer  by  the  presi- 
dent of  the  court.  The  judge-advocate's  oath  is  in  the  following  form: 
"  You,  A  B,  do  swear  that  you  will  not  disclose  or  discover  the  vote  or 
opinion  of  any  particular  member  of  the  court-martial  unless  required  to 
give  evidence  tliereof,  as  a  witness,  by  a  court  of  justice  in  due  course  of 
law;  nor  divulge  the  sentence  of  the  court  to  any  but  the  proper  authority 
until  it  shall  be  duly  disclosed  by  the  same.     So  help  you  God."  ' 

'  84th  Article  of  War.  Tlie  words  "a  court  of  justice"  are  deemed  to  mean  a 
civil  or  criminiil  court  of  tlie  Uniled  Stales,  or  of  a  State,*  etc.,  and  not  to  include 
a  court-martial. f  A  case  can  li'irdly  he  supjjosed  in  which  it  would  hccome  proper  or 
di.siralde  for  a  court-martial  to  inquire  into  the  votes  or  opinions  given  in  closed  court 
by  ihe  u:embers  of  another  similar  iribuniil.     Dig.  J.  A.  Gen,,  98,  par.  6. 

-  Dig.  J.  A.  Gen.,  97.  par.  1. 

^  85th  Article  of  War.  Where  the  record  of  a  tiial  failed  to  sliow  that  the  court  or  the 
judge  ailvocate  was  sworn,  held  that  the  conviction  and  sentence  were  without  legal 
validity.  The  ([ualififation  by  swearing  is  enjoined  as  a  necessary  iireliininary  by 
Articles  of  War  84  and  85,  and  the  record  must  sliow  affirmatively  whatever  is  nuide  by 


♦The  onlv  cast*  which  has  lieen  met  with  in  which  the  memhera  of  a  cotirt-martial  have  been 
required  to  disclose  their  vores  liy  the  pio  ess  of  a  civil  eourt  is  that  of  7?i  tp  Mackenzie,  I  Pa.  Law 
.J  R.,  ■'•'ifi.  in  whicti  tiie  riiernhers  oi'  a  naval  coiirt-niartial  were  compelled,  against  their  olijections,  to 
state  their  votes  as  (jiven  u()on  the  findinsjcs  at  a  fiarticular  trial 

t  In  the  present  corresponding  British  Article  the  words  "or  a  court-martial  "  are  added  after  the 
rds  "  a  court  of  justice." 


words 


THE  lyClDESTti   OF  THE   TRIAL.  93 

This  Article  makes  the  administering  to  the  court  of  the  form  of  oath 
tliereby  prescribed  an  essential  preliminary  to  its  entering  upon  a  trial.' 
Until  the  oath  is  taken  as  specified  the  court  is  not  qualified  "  to  try  and 
determine."  Tlie  arraignment  of  a  prisoner  and  the  reception  of  his  plea — 
which  is  the  commencement  of  tlie  trial — before  the  court  is  sworn,  is  with- 
out legal  effect. 

A  member  added  to  the  court,  after  the  members  originally  detailed  have 
been  duly  sworn,  should  be  separately  sworn  by  the  judge-advocate  in  the 
full  form  prescribed  by  the  Article;  otherwise  he  is  not  qualified  to  act  as  a 
member  of  the  court.  A  member  who  prefers  it  may  be  affirmed  instead  of 
sworn.' 

Obligation  of  the  Oath. — The  members  are  sworn  to  "  well  and  truly  try 
and  determine  the  matter  now  before  them,"  that  is,  the  particular  set  of 
charges  which  lias  been  furnished  the  accused  and  upon  which  he  is  presently 
to  be  arraigned  and  tried.  From  this  it  follows  that  "  after  the  accused  has 
been  arraigned  upon  certain  charges  and  has  pleaded  thereto,  and  trial 
on  the  same  has  been  entered  upon,  new  and  additional  charges  which  the 
accused  has  had  no  notice  to  defend  cannot  be  introduced  or  the  accused 
required  to  plead  thereto.  Such  charges  should  be  made  the  subject  of  a 
separate  trial,  upon  which  the  accused  may  be  enabled  properly  to  exercise 
the  right  of  challenge  to  the  court,  and  effectively  to  plead  and  defend."  ' 

The  requirement  of  the  oath  that  the  court  "  will  well  and  truly  try 
and  determine  according  to  evidence,"  and  "  will  duly  administer  justice 
without  partiality,  favor,  or  affection,  etc.,  according  to  the  provisions  of  tlie 
rules  and  articles  for  the  government  of  the  armies  of  the  United  States," 
imposes  an  obligation  upon  the  members,  in  reaciiing  a  finding  and  in  award- 
ing an  appropriate  sentence,  to  exclude  from  their  minds  all  considerations 
not  derived  from  the  evidence  submitted  during  the  trial,  or  from  the  appli- 
cation of  the  law  to  the  facts  as  thus  established  in  evidence. 

It  is  also  a  departure  from  the  engagement  expressed  in  the  body  of  the 
oath — to  try  and  determine  according  to  evidence,  and  administer  justice 
according  to  the  Articles  of  War,  etc. — for  a  court-martial  to  determine  a 

statute  essential  to  its  jurisdiction  and  the  le^rality  of  its  proceedings.  Dii;.  .J.  A.  Gen.. 
650.  i)ar.  VI.     See,  also.  Rankle  m.  U.  S..  122  U.  S..  586. 

'  See.  in  this  connection.  G.  O.  lo,  Hdqrs.  of  Army,  1880,  which,  in  directing  that 
judi;e-ii(lvorates  shall  be  detailed  for  reiriincntal  :uid  garrison  jis  well  ;is  geucral  conrts- 
nuirliiil,  rescinds  G.  O.  49  of  1871,  prescribing  a  special  form  of  oath  for  the  former 
courts,  and  thus  i)rovides  for  their  taking  the  due  and  regular  oath  recited  in  Art.  84. 

-  Dig.  J.  A.  Gen.,  97,  par.  1.  See,  also.  Section  1,  Revised  Statutes  of  the  United 
States. 

'Dig  J.  A  Gen.,  97,  par.  4;  227,  par.  9.  In  a  case,  therefore,  where,  after  the 
conn  had  be:'n  sworn  and  tiie  accu.^cd  had  been  ariaigned  ami  h:iil  pleaded,  an  addi- 
tional charge,  setting  forth  a  new  and  distinct  ofTcnse,  was  introduced  into  the  case,  and 
the  accused  was  trietl  and  (-(nivicted  upon  the  same. — held  that  as  to  this  cinirge  the 
proceedings  were  falallv  defective,  the  court  not  having  been  sworn  to  trv  and  determine 
such  charge.  Ibid.,  97,"par.  2.  See  G.  C.  M.  O.  39,  WaV  Dept.,  1867  ;  G.O.  13,  Northera 
Dept.,  1864. 


94:  MILITARY  LAW. 

case  either  upon  personal  knowledge  of  the  facts  possessed  by  the  members 
and  not  put  in  evidence,  or  according  to  the  private  views  of  justice  of  the 
members  independently  of  the  provisions  of  the  code.' 

The  oath  contains  the  added  requirement  that  "  if  any  doubt  shall  arise 
not  explained  by  said  articles,"  justice  is  to  be  done,  as  between  the  United 
States  of  America  and  the  prisoner  to  be  tried,  "  according  to  your  conscience, 
the  best  of  your  understanding,  and  the  custom  of  war  in  like  cases."  The 
doubts  here  referred  to  must  originate  in,  and  grow  out  of,  the  evidence  sub- 
mitted during  the  trial  of  the  case;  as  from  conflicting  testimony,  deficiency 
of  testimony  in  certain  particulars,  or  from  want  of  credibility  as  to  par- 
ticular witnesses,  such  doubt  can  in  no  case  be  derived  from  mere  speculative 
theories  as  to  the  probable  existence  or  non-existence  of  facts,  or  their  bear- 
ing upon  the  guilt  or  innocence  of  the  accused.' 

Obligation  to  Secrecy. — "  Xo  sentence  of  a  court-martial  is  complete  or 
final  until  it  has  been  duly  approved.  Until  that  period  it  is,  strictly  speak- 
ing, no  more  than  an  opinion  which  is  subject  to  alteration  or  revision.  In 
this  interval  the  communication  of  that  opinion  could  answer  no  ends  of 
justice,  but  might  in  many  cases  tend  to  frustrate  and  defeat  them.  The 
obligation  to  perpetual  secrecy,  with  respect  to  the  opinions  of  the  particular 
members  of  the  court,  is  likewise  founded  on  the  wisest  policy."  This 
end  is  therefore  best  attained  "  by  the  confidence  and  security  which  every 
member  possesses  that  his  particular  opinion  is  never  to  be  divulged. 
Another  reason,  of  yet  stronger  nature,  is  that  the  individual  members  of 
the  court  may  not  be  exposed  to  the  resentment  of  parties  and  their  connec- 
tions, which  can  hardly  fail  to  be  excited  by  those  sentences  which  -it  is 
often  obligatory  upon  courts  to  award.  It  may  be  necessary  for  officers  in 
the  course  of  tbair  duty  daily  to  associate  and  frequently  to  be  sent  on  the 
same  command  or  service  with  a  persou  against  whom  they  liave  given  an 
unfavorable  vote  or  opinion  on  a  court-martial.  The  publicity  of  these 
votes  or  opinions  would  create  the  most  dangerous  animosities,  equally 
fatal  to  the  peace  and  security  of  individuals  and  prejudicial  to  the  public 
service."  ' 

It  will  be  observed  that  the  strict  verbiage  of  the  oath  places  the  obliga- 
tion of  secrecy  upon  "  the  sentence  of  the  court "  and  upon  "  the  vote  or 
opinion  of  any  member,"  but  does  not  in  express  terms  forbid  a  disclosure 
of  the  "  finding."  An  inflexible  custom  of  the  service,  however,  brings  this 
incident  of  the  trial  within  the  same  restriction,  and  its  disclosure  would  be 
authorized  only  in  the  event  of  the  officer  being  required  to  give  evidence, 
in  respect  to  such  finding,  before  a  tribunal  of  competent  jurisdiction.    The 

'  Diff.  J.  A.  Gen.,  97.  par.  ?>.  Compare  G.  O.  21,  Dept.  of  the  Ohio,  1866;  G.  C. 
M,  O.  41.  Dept.  of  Texas,  1874. 

-  U.  S.  vs.  Newton,  52  Fed.  Rep.,  275 ;  Cora.  vs.  Drum,  58  Pa.  St.,  9. 
'  Macomb,  ^  51. 


TUB  INCIDENTS  OF  THE  TRIAL.  95 

excepting  clause  of  the  oatli,  autliorizing  the  disclosure  of  the  finding  and 
sentence  to  the  judge-advocate,  has  been  made  necessary  by  a  recent  enact- 
ment of  Congress  requiring  that  officer  to  withdraw  from  the  presence  of  the 
court  whenever  it  sits  in  closed  session.' 

Oath  of  Judge-Advocate. — The  oath  which  is  taken  by  the  judge-advo- 
cate contains  the  same  oljligation  to  secrecy  as  that  administered  to  the 
members,  except  so  far  as  it  relates  to  the  disclosure  of  the  findings  and  sen- 
tence to  the  person  who  is  emj)owered  to  api)rove  or  disapprove  the  sentence 
of  the  court.  It  is  not  inconsistent  with  his  oath  or  duty  for  the  judge- 
advocate  to  communicate  to  the  proper  authority  his  views  respecting  the 
proceedings  of  tlie  court.' 

Oaths  of  Members,  etc.,  of  Minor  Courts- martial. — The  oaths  prescribed 
by  law  for  the  members  and  judge-advocates  of  general  courts-nuirtial  are 
administered  in  the  same  manner  and  by  the  same  persons  to  the  corre- 

•  Soc.  3.  Act  of  July  27,  1892,  (37  St:it.  at  Large,  278). 

Where  the  vote  of  each  member  of  the  court  upon  oue  of  several  speciticaiions  upon 
•wliich  the  accused  was  tried  was  stated  in  the  record  of  trial,  lield  that  such  statement 
was  a  clear  violation  of  the  oalii  of  the  court,  though  it  did  not  atTect  tlu-  validity  of  the 
proceedings  or  sentence.  A  statement  in  the  record  of  trial  to  the  clfect  that  all  the 
members  concurred  iti  the  finding  or  in  the  sentence,  while  it  does  not  vitiate  tlu;  proceed- 
ings or  sentence,  is  a  direct  violation  of  the  oath  prescribed  by  this  Article.  Dig.  J.  A. 
Gen.,  97,  par  4. 

The  disclosing  of  the  finding  and  sentence  to  a  clerk  by  permitting  liim  to  remain 
with  the  court  at  the  tinal  deliberation  anti  enter  tlie  judgment  in  the  recoid  is  a  viola- 
tion of  the  oath  and  a  grave  irregularity,  though  one  wliich  iloes  not  allect  the  validitv 
of  tlie  proceedings  or  sentence.  Ibid. ,98,  par.  5.  A  court-martial,  member  of  court,  or 
judge-advocate  cannot  of  course  lawfully  communicale  to  a  reporter  or  clerk,  by  allow- 
ing him  to  record  the  .same  or  otherwise,  the  linding  or  sentence  of  the  court.  Before 
proceeding  to  deliberate  upon  iis  finding  the  court  should  require  tlie  reporter  or  clerk, 
if  it  has  one,  to  withdraw.  But  the  fact  that  the  finding  or  sentence  or  both  may  have 
been  made  known  to  the  reporter  or  clerk  of  a  court-Tuartial  cannot  aflfect  the  legal 
validitv  of  its  proceedings  or  sentence.     Ibid.,  2(J4,  par.  1. 

Held  that  the  reopening  of  ihe  court,  after  a  conviction,  to  receive  evidence  of  pre- 
vious convictions  was  not  a  violation  of  the  84th  Article  of  War.*  The  procedure  was 
designed  lo  carry  out  the  spirit  of  the  legislation  wliicli  excluded  judge-advocates  from 
closed  sessions — to  place  prosecution  and  defense  on  a  more  ecjual  footing,  by  allowing 
tlu'  accused  to  lie  present  wlien  evideiu-e  of  previous  convictions  is  submitted  and  to 
sciuliiiize  the  same  and  test  their  legality.     Jbid.,  609,  par.  1. 

Upon  a  proposed  enactment  providing  that  the  members  of  courts-martial  be  allowed, 
at  their  own  re(iuest.  to  have  their  individual  votes  ujion  the  tinding  or  sentence  entered 
upon  the  record,  advised  that  the  .same  be  not  favored  by  the  Secretary  of  War.  Such  a 
proceeding  would  iiidied  relieve  self-respecting  members  from  being  implicated  in  an 
unjust  or  irrational  linding  or  sentence,  lint  it  would  materially  impair  the  elfect  of  the 
jiuigment  of  the  court  if  tlie  composition  of  the  vote  were  to  be  thrown  open  to  scrutiny 
ami  discussinn.  The  jiroceeding  indeed  might  readily,  contrary  to  the  spirit  of  the  84lh 
Article,  disclose  the  votes  of  all  the  members — as  where,  in  a  court  of  nine,  four 
requested  a  record  of  their  personal  votes.     Ihid.,  41B,  par.  17. 

-  Macomb.  :?  52;  O'Brien.  240-243;  Benet,  KM-lOo;  Ives,  113-121;  Wiuthrop,  318; 
Tvtler,  119-121  ;  Clode,  Mil.  Law,  113;  .Man.  Mil.  Law,  52,  389;  Man.  for  Courts-mar- 
tial, 28;  Dig.  J.  A.  Gen.,  96-98;  Adye,  154;  Harwood,  74,  75. 

*  In  a  recent  case  tliis  opinion  was  restated  l).v  \\\i'  Judee-Advocate  General  in  the  folldwinp:  terms: 
"The  opeiiinjjof  tlie  court  tn  hear  evidence  of  i)revii>iis  convictions  justifies  the  inft-renoH  that  the 
accused  lias  lieen  convicted,  hut  w<ni!d  not  he  such  n.  ijiselosiife  as  is  meant  by  tlie  Suli  Article  of  War. 
But  the  oath  does  not  specify  anii  does  not  inclMde  tlif  tiinliMir.  and  must  be  construed  with  reference 
to  the  present  system,  which  is  established  t)y  aiithoi  iiy  haviiiir  the  force  of  l«w.  It  violates  iieilher 
the  language  nor,  under  our  present  system,  (wh  itever  it  mav  have  done  befure.)  the  spirit  of  the 
Article  to  open  the  court,  after  conviction,  to  hear  evidence  of  previous  convictions." 


96  MILITARY  LAW. 

spouding  officers  of  regimental  and  garrison  courts,  and  have  the  same 
obligatory  effect.  The  officers  composing  field-officers'  courts  and  jthe 
summary  court,  recently  established  by  law,  are  not  sworn  as  sucli,  but 
perform  their  duties  under  the  sanction  of  their  respective  oaths  of  office. 

Interpreter. — If  the  services  of  an  interpreter  are  required,  he  is  intro- 
duced and  sworn  at  this  stage  of  the  trial.' 

THE    ARRAIGNMENT. 

Pleadings. — The  oaths  required  by  law  having  been  duly  administered, 
the  court,  as  a  consequence,  becomes  a  legal  tribunal,  and  the  power  con- 
ferred upon  it  by  statute  to  try  military  offenses  becomes  fully  operative.  A 
pleading,  technically  speaking,  is  the  statement,  in  a  logical  and  legal  form, 
of  the  facts  constituting  a  particular  cause  of  action  or  ground  of  defense. 
In  this  sense  the  indictment  in  a  criminal  trial,  and  the  charges  and  specifi- 
cations in  a  court-martial  trial,  constitute  a  part  of  the  pleadings  in  the  case. 
The  first  pleading  in  a  court-martial  trial  consists  in  the  charges  and  specifi- 
cations preferred  against  the  accused,  to  which  he  is  required  to  make 
answer,  and  this  answer,  which  is  known  technically  as  the  "  plea,"  may 
consist  in  either  a  special  plea  in  bar,  presently  to  be  explained,  or  in  a  plea 
of  "  guilty  "  or  "  not  guilty  "  to  each  of  the  charges  and  specifications.  In 
the  latter  case  the  accused  is  said  to  plead  the  "  general  issue,"  that  is,  to 
the  merits  of  the  case;  and  it  is  this  plea  upon  whicli,  in  ordinary  cases,  the 
trial  on  the  merits  proceeds."  The  formal  answers  of  the  accused  to  the 
several  charges  and  specifications,  as  they  are  read  to  him  by  the  judge- 
advocate,  are  called  "  pleas,"  and  the  reading  of  such  charges,  and  the 
takintr  of  nleas  in  answer  thereto,  constitute  what  is  known  as  the  "  arraign- 
ment."  During  the  arraignment  the  judge-advocate  and  the  accused  and 
his  counsel  remain  standing. 

Classification  of  Pleas. — The  several  pleas  which  an  accused  may  inter- 
pose in  answer  to  the  charges  preferred  against  him  are  classified  according 
to  their  nature  and  effects  into  (1)  pleas  to  the  jurisdiction,  (2)  pleas  in 
bar  of  trial,  (3)  pleas  in  abatement,  and  (4)  pleas  to  the  merits  of  the  case, 
that  is,  to  the  "  general  issue." 

Pleas  to  the  Jurisdiction. — It  is  a  rule  of  law,  applying  to  all  courts  of 
special  or  limited  jurisdiction,  that  their  records  shall  show  affirmatively, 
as  to  each  case  tried,  that  the  court  j.cted  with  full  jurisdiction  not  only  as 
to  the  offense  itself,  but  also  as  to  the  person  of  the  offender,  lu  order, 
therefore,  that  a  particular  court-martial  trial  may  be  valid,  the  following 
conditions  must  be  fulfilled :  (1)  the  court  itself  must  have  been  properly 
constituted;  (2)  the  accused  must  be  subject  to  its  jurisdiction;  and 
(3)  the  crime  for  which  he  is  tried  must  be  a  military  offense.     A  defect  in 

•  For  form  of  interpreter's  oath,  see  page  29,  Manual  for  Courts-martial. 

*  Bishop,  Criminal  Procedure,  §  743. 


THE  INCIDENTS   OF  THE   TRIAL.  9T 

any  one  of  these  particulars  will  be  fatal  to  the  jurisdiction.  An  objection 
going  to  a  want  of  jurisdiction  cannot  be  waived  by  the  accused,  for  criminal 
courts  derive  their  power  to  try  cases  from  formally  enacted  statutes,  and  can. 
never  acquire  jurisdiction  by  the  mere  consent  of  the  accused,  as  expressed 
in  his  waiver  of  a  well-grounded  objection  to  its  jurisdiction.  It  is  for  this 
reason  that  pleas  to  the  jurisdiction  are  submitted  first  in  the  order  of  plead- 
ing; since  an  objection  to  the  jurisdiction  of  the  court  must  be  disposed  of 
before  the  court  can  take  a  single  step  in  the  direction  of  the  trial.' 

Objections  to  the  Constitution  of  the  Court. — Under  this  head  it  may  be 
alleged,  by  a  j)lca  to  the  jurisdiction,  that  the  convening  officer  is  without 
authority  to  convene  the  court.  It  has  been  seen  that  the  power  to  consti- 
tute courts-martial  is  conferred  in  express  terms  by  statute;  it  has  also 
been  seen  that  such  power,  not  being  subject  to  delegation,  must  be 
personally  exercised  in  every  case  by  the  proper  convening  authority.'  The 
several  Articles  conferring  power  to  appoint  courts-martial  also  make  the 
convening  officer  tlie  judge  of  the  existence  or  non-existence  of  certain  facts 
or  conditions,  as  to  the  number  of  officers  that  can  be  assembled,  and  the 
rank  of  the  officers  composing  a  particular  court;  in  such  cases  tlie  decision 
of  the  convening  ofllcor,  as  expressed  in  the  order  appointing  the  court,  is 
final,  and  is  not  subject  to  inquiry  by  the  court-martial  itself,  or  to  subse- 
quent review  by  a  civil  tribunal.'  This  question,  however,  is  one  which 
presents  but  little  difficulty  in  practice;  if  the  convening  officer  in  point  of 
rank  and  command  conforms  to  the  conditions  specified  in  the  statute,  his 
power  to  appoint  a  court-martial  under  such  statute  is  complete  and,  in 
general,  will  be  sustained. 

Convening  Officer  as  Accuser. — The  convening  officer  may  also  stand,  in 
respect  to  the  accused,  in  tlie  situation  of  an  accuser  or  prosecutor;  in  which 
event  the  appointing  power  passes,  by  operation  of  law,  to  a  superior  officer 
therein  designated.*  While,  in  general,  the  signing  of  the  cliarges  fixes 
npon  the  signer  the  character  of  an  accuser,  such  signing  is  not  always  con- 
clusive as  to  the  fact,  and  may  be  rebutted  by  evidence  showing  that  the 
officer  v/hose  name  is  signed  to  the  charges  acted  pro  forma,  or  in  a  mere 
ministerial  capacity.  On  the  other  hand,  a  convening  officer  may  be  the 
accuser  in  fact,  and  within  the  meaning  of  the  statute,  without  affixing  his 
signature  to  the  charges,  which,  indeed,  may  be  signed  by  another,  as  by  a 
staff-officer  or  bv  the  judge-advocate  of  the  court-martial. 


'  Objections  troiiisr  to  the  legal  constitution  or  composition  of  the  court,  or  to  its  juris- 
diction, slioiild  proiicrly  be  spri-ially  presented  when  the  uccused  is  tirst  called  upmi  to 
]ilcad;  valid  objections  of  this  radical  character,  lunvever.  are  not  waived  if  Uie  accused, 
instead  of  subiiiitting  a  special  plea,  pleads  over  to  the  merits,  since  consent  cannot  con- 
fer jurisdiction  whei-e  none  exists  in  law,      Disr.  J.  A.  Gen  ,  591,  par.  9. 

■^  See  the  chapter  entitled  Jimusdu'TION  of  C'orKTS-MAKTi.\L. 

'  75th.  81st.  and  8'id  Articles  of  War. 

•»  72d  and  73d  Articles  of  War. 


96  MILITARY  LAW. 

spending  officers  of  regimental  and  garrison  courts,  and  have  the  same 
obligatory  eflFect.  The  officers  composing  field-officers'  courts  and  ,the 
summary  court,  recently  established  by  law,  are  not  sworn  as  such,  but 
perform  tlieir  duties  under  the  sanction  of  their  respective  oaths  of  office. 

Interpreter. — If  the  services  of  an  interpreter  are  require'd,  he  is  intro- 
duced and  sworn  at  this  stage  of  the  trial.' 

THE    ARRAIGXMENT. 

Pleadings. — The  oaths  required  by  law  having  been  duly  administered, 
the  court,  as  a  consequence,  becomes  a  legal  tribunal,  and  the  power  con- 
ferred upon  it  by  statute  to  try  military  offenses  becomes  fully  operative.  A 
pleading,  technically  speaking,  is  the  statement,  in  a  logical  and  legal  form, 
of  the  facts  constituting  a  particular  cause  of  action  or  ground  of  defense. 
In  this  sense  the  indictment  in  a  criminal  trial,  and  the  charges  and  specifi- 
cations in  a  court-martial  trial,  constitute  a  part  of  the  pleadings  in  the  case. 
The  first  pleading  in  a  court-martial  trial  consists  in  the  charges  and  specifi- 
cations preferred  against  the  accused,  to  which  he  is  required  to  make 
answer,  and  this  answer,  which  is  known  technically  as  the  "  plea,"  may 
consist  in  either  a  special  plea  in  bar,  presently  to  bo  explained,  or  in  a  plea 
of  "  guilty  "  or  "  not  guilty  "  to  each  of  the  charges  and  specifications.  In 
the  latter  case  the  accused  is  said  to  plead  the  "  general  issue,"  that  is,  to 
the  merits  of  the  case;  and  it  is  this  plea  upon  which,  in  ordinary  cases,  the 
trial  on  the  merits  proceeds."  The  formal  answers  of  the  accused  to  the 
several  charges  and  specifications,  as  they  are  read  to  him  by  the  judge- 
advocate,  are  called  "pleas,"  and  the  reading  of  such  charges,  and  the 
takino-  of  pleas  in  answer  thereto,  constitute  what  is  known  as  the  "  arraign- 
ment."  During  the  arraignment  the  judge-advocate  and  the  accused  and 
liis  counsel  remain  standing. 

Classification  of  Pleas. — The  several  pleas  which  an  accused  may  inter- 
pose in  answer  to  the  charges  preferred  against  him  are  classified  according 
to  their  nature  and  effects  into  (1)  pleas  to  the  jurisdiction,  (2)  pleas  in 
bar  of  trial,  (3)  pleas  in  abatement,  and  (4)  pleas  to  the  merits  of  the  case, 
that  is,  to  the  "  general  issue." 

Pleas  to  the  Jurisdiction. — It  is  a  rule  of  law,  applying  to  all  courts  of 
special  or  limited  jurisdiction,  that  their  records  shall  show  affirmatively, 
as  to  each  case  tried,  that  the  court  jxted  with  full  jurisdiction  not  only  as 
to  the  offense  itself,  but  also  as  to  the  person  of  the  offender.  In  order, 
therefore,  that  a  particular  court-martial  trial  may  be  valid,  the  following 
conditions  must  be  fulfilled :  (1)  the  court  itself  must  have  been  properly 
constituted;  (2)  the  accused  must  be  subject  to  its  jurisdiction;  and 
(3)  the  crime  for  which  he  is  tried  must  be  a  military  offense.     A  defect  in 

'  For  form  of  interpreter's  oath,  see  page  29,  Manual  for  Courts-martial. 
*  Bishop,  Criminal  Procedure,  §  743. 


rilE  INCIDENTS   OF   THE   TRIAL.  97 

any  one  of  these  particulars  will  Vje  fatal  to  the  jurisdiction.  An  objection 
going  to  a  want  of  jurisdiction  cannot  be  waived  by  the  accused,  for  criminal 
courts  derive  their  power  to  try  cases  from  formally  enacted  statutes,  and  can. 
never  acquire  jurisdiction  by  the  mere  consent  of  the  accused,  as  expressed 
in  his  waiver  of  a  well-grounded  objection  to  its  jurisdiction.  It  is  for  this 
rejison  that  pleas  to  the  jurisdiction  are  submitted  first  in  the  order  of  plead- 
ing; since  an  objection  to  the  jurisdiction  of  the  court  must  be  disposed  of 
before  the  court  can  take  a  single  step  in  the  direction  of  the  trial.' 

Objections  to  the  Constitution  of  the  Court. — Under  this  head  it  may  be 
alleged,  by  a  i)k'a  to  the  jurisdiction,  that  the  convening  officer  is  witbout 
authority  to  convene  the  court.  It  has  been  seen  that  the  power  to  con?;ti- 
tute  courts-martial  is  conferred  in  express  terms  by  statute;  it  has  also 
been  seen  that  such  power,  not  being  subject  to  delegation,  must  be 
personally  exercised  in  every  case  by  the  proper  convening  authority.'  The 
several  Articles  conferring  power  to  appoint  courts-martial  also  tnake  the 
convening  officer  the  judge  of  the  existence  or  non-existence  of  certain  facts 
or  conditions,  as  to  the  number  of  officers  that  can  be  assembled,  and  the 
rank  of  the  officers  composing  a  particular  court;  in  such  cases  the  decision 
of  the  convening  officer,  as  expressed  in  the  order  appointing  the  court,  is 
final,  and  is  not  subject  to  inquiry  by  the  court-martial  itself,  or  to  subse- 
quent review  by  a  civil  tribunal.'  This  question,  however,  is  one  which 
presents  but  little  difficulty  in  practice;  -if  the  convening  officer  in  point  of 
rank  and  command  conforms  to  the  conditions  specified  in  the  statute,  his 
power  to  appoint  a  court-martial  under  such  statute  is  complete  and,  in 
general,  will  be  sustained. 

Convening  Officer  as  Accuser.  ^The  convening  officer  may  also  stand,  in 
respect  to  the  accused,  in  the  situation  of  an  accuser  or  prosecutor;  in  which 
event  the  a])pointing  power  passes,  by  operation  of  law,  to  a  superior  officer 
therein  designated.*  While,  in  general,  the  signing  of  the  charges  fixes 
upon  the  signer  the  character  of  an  accuser,  such  signing  is  not  always  con- 
clusive as  to  the  fact,  and  may  be  rebutted  by  evidence  showing  that  the 
officer  whose  name  is  signed  to  the  charges  acted  pro  forma,  or  in  a  mere 
ministerial  capacity.  On  the  otlier  hand,  a  convening  officer  may  be  the 
accuser  in  fact,  and  within  the  meaning  of  the  statute,  without  affixing  his 
signature  to  the  charges,  which,  indeed,  may  be  signed  by  another,  as  by  a 
staff-officer  or  by  the  judge-advocate  of  the  court-martial. 

'  Objections  sroiiisr  to  tlie  lecjal  constitulioii  or  composition  of  the  court,  or  to  its  juris- 
diction, slioiild  projicrly  be  specially  presented  wiien  the  licensed  is  first  called  up.in  to 
plead;  valid  objections  of  this  radical  character,  however,  are  not  waived  if  the  accused, 
instead  of  subniittiiig  a  special  plea,  pleads  over  to  the  merits,  since  consent  cannot  con- 
fer jurisdiction  whei-e  none  exists  in  law.     Dia:.  J.  A.  Gen  ,  591,  par.  9. 

'^  See  the  chapter  entitled  Jukisdictiox  of  ("orRTs-M.\UTi.\L. 

3  75th,  81st.  and  8'2d  Articles  of  War. 

•»  72d  and  73d  Articles  of  War. 


98  MILITARY  LAW. 

Whether  the  convening  officer  is  or  is  not  tlie  accuser  in  a  particular  case 
will  depend  upon  the  animus;  and  where  he  himself  ijiitiates  the  charge  out 
•of  a  hostile  animus  toward  the  accused  or  a  personal  interest  adverse  to  him, 
or  from  a  similar  motive  adopts  and  makes  his  own  a  charge  initiated  by 
another,  he  is  to  be  deemed  an  "  accuser  or  prosecutor  "  within  the  Article. 
Xor  is  he  the  less  so  where,  though  he  has  no  personal  feeling  or  interest  in 
the  case,  he  has  become  possessed  with  the  conviction  that  the  accused  is 
guiltv  and  deserves  punishment  and,  in  this  conviction,  initiates  or  assumes 
as  his  own  the  charge  or  the  prosecution.  For  in  this  case,  as  in  the  former, 
he  is  unfit  to  be  di  judge  npon  the  merits  of  the  case:  in  the  one  instance  he 
is  too  much  prejudiced  to  be  qualified  to  do  justice;  in  the  other  he  has 
condemned  the  accused  beforehand.' 

While  the  objection,  if  known  to  exist,  should  be  taken  at  or  before  the 
arraignment,  being  one  going  to  the  legal  constitution  of  the  court,  it  may 
be  raised  at  any  stage  of  the  proceedings;  and  if  its  existence  be  not  admitted 
bv  the  prosecution,  the  accused  is  entitled  to  prove  it  like  any  other  issue. ^ 

Objections  to  the  Composition  of  the  Court-martial. — An  objection  may 
also  be  addressed  to  the  composition  of  the  court;  as  that  the  accused  is  a 
member  of  the  militia  forces,  and  that  the  court  is  composed  wholly  or  in 
part  of  regular  officers.'  The  validity  of  the  plea  in  this  case  will  be  deter- 
mined by  the  description  of  the  accused  as  stated  in  the  charges  or  as  estab- 
lished by  the  testimony  submitted  in  supj)ort  of  the  plea.  It  is  only  neces- 
sary to  observe  in  this  connection  that  while  a  regular  officer,  as  such,  may 
not  sit  as  a  member  of  a  court  for  the  trial  of  officers  or  enlisted  men  of  the 
militia  or  other  forces,  he  may  lawfully  do  so  by  virtue  of  a  separate  com- 
mission in  an  organization  of  militia  or  volunteers." 

Amenability  of  the  Accused  to  Trial. — It  is  essential  to  the  jurisdiction 
of  a  military  tribunal  that  the  person  of  the  accused  should  be  amenable  to 
military  jurisdiction.  As  to  an  officer,  this  is  shown  by  the  acceptance  of 
his  appointment  or  commission;  and  as  to  an  enlisted  man,  by  proof  of  his 
enlistment,  or  muster-in,  or,  in  some  cases,  by  his  voluntary  acquiescence  in, 
or  implied  acceptance  of,  the  status  of  a  soldier,  as  evinced  by  the  perform- 

'  Die;.  J.  A.  Gen.,  82,  par.  7.     See,  also,  the  chapter  entitled  The  Constitution  of 

CorUTS-MARTIAL 

'^  Ibid..  84,  par.  8.  Or  it  may  be  taken  \.o  the  reviewinii:  ofiicer  with  a  view  to  his  dis- 
approving the  proceedings,  or  may  bo  made  to  the  President,  after  the  approval  and 
execution  of  the  sentence,  with  a  view  to  having  the  same  declared  invalid  or  to  the 
obtaining  of  other  appropriate  relief.    Ibid. 

Compare  late  opinion — to  a  somewhat  similar  effect — of  the  Attorney-General  of 
August  1,  1878,*  in  which  it  is  also  iu-ld  tliat  where  the  reeord  of  the  trial  fails  to  indicate 
that  the  convening  officer  was  the  ".'iccusei'  or  prosecutor"  of  the  accused,  tiie  latter,  in 
applying  to  the  Secretary  of  War  to  have  the  proceedings  pronounced  invalid  on  tliis 
ground,  may  establish  the  fact  by  the  production  of  affid(tvits  setting  forth  the  circum- 
stances of  the  case  and  the  action  of  the  commamier.     Ibid.,  82,  par.  8,  note  1. 

*  77th  Article  of  War  ;  Section  lOoH,  Keviseii  Statutes. 

*  Ives,  29;  Dig.  J.  A.  Gen.,  43  (edition  of  18G8). 

•  16  Opin.  Att.-Gen. 


THE  INCIDENTS  OF  THE   TRIAL.  99 

ance  of  the  duties  and  acceptance  of  the  pay  or  emolnmenta  attached  to  the 
position.*  Whenever  it  is  proposed  to  subject  a  civilian  to  trial  by  court- 
martial,  his  amenability  to  such  trial  must,  as  a  rule,  be  shown  to  have  been 
expressly  conferred  by  statute.  If  such  statutory  authority  be  wanting,  in 
no  case  can  it  be  conferred  by  the  act  of  the  accused;  either  by  an  express 
waiver  of  objection  to  trial,  or  by  an  implied  acceptance  of  the  jurisdiction, 
as  would  be  shown  by  his  submitting  the  case  to  trial  by  a  military  tribunal.' 
In  some  cases — the  inmates  of  the  National  Homes  for  Disabled  Volunteer 
Soldiers,  for  example — even  the  express  authority  of  a  statute  is  not  sufficient 
to  warrant  the  trial  of  a  citizen  by  a  military  court.'  It  is  proper  to  observe 
that  the  Articles  of  War  Subjecting  civilians  to  trial  by  court-martial  are 


'  DifT.  J.  A.  Gen..  323,  panigmplis  4-6;  ibid.,  75,  parsigraphs  1-8. 

To  give  !i  court-niarliiil  jiiris(licti(ni  of  iho  person  of  an  otiicer  or  soldier  charged  with 
a  military  olTeuse,  it  is  not  necessary  tlial  he  shall  have  been  subjected  to  any  particular 
form  of  arrest,  or  that  he  shall  have  been  arrested  at  all,  or  even  ordered  to  attend  the 
court.  Here,  as  before  a  civil  tribunal,  his  voluntary  appearance  and  submission  for 
trial  is  all  Ihjit  is  essential.     Ibid.,  p.  3:J8,  par.  11. 

In  order  to  become  amenable  to  the  nulilary  jurisdiction,  an  officer  or  soldier  must 
have  been  legally  and  fully  admitted  into  the  military  service  of  the  United  States. 
Thus  held  liiat  an  officer  of  Slate  volunteers  ai)poiuled  by  a  governor  of  a  Slate,  but  not 
yet  mustered  into  the  United  States  service,  was  not  amenable  to  the  jurisdiction  of  a 
court-martial  of  the  United  Slates  for  an  offense  committed  while  engaged  in  recruiting 
service  under  the  authority  of  the  governor.     Ibid.,  323,  par.  4. 

It  cannot  affect  the  au'thoriiy  of  a  court-martial  to  take  cognizance  of  the  military 
offense  involved  in  an  injury  committed  by  a  soldier  against  an  officer  that  before  the 
trial  the  latter  has  resigned  or  been  otherwise  separated  from  the  Army.  Ibid.,  329, 
par.  13. 

Whether  a  soldier  may  legally  be  held  amenable  to  trial  by  court-martial  for  an 
offense  committed  by  liinrwlule  o"n  furlough  will  dejjend  upon  the  nature  of  the  offense 
and  tlie  circumstances  of  Ins  situation.  In  general,  indeed,  where  he  is  thus  absent  at 
his  home  or  at  such  a  distance  from  his  station  and  from  troops  that  his  offenses  will  not 
directly  prejudice  mi'litaiy  discipline,  lie  will  not  render  himself  amenable  to  the  military 
jurisdiction  unless,  imleed,  he  commits  a  desertion.  Ibid.,  par.  14.  See  Manual  for 
Courls-inartial,  p.  16,  par.  7. 

The  discharge  of  a  soldier  not  taking  effect  till  delivery,  actual  or  constructive,  held 
that  a  soldier  wiio  committed  a  military  offense  on  the  day  on  which  he  was  to  lie  dis- 
honorably discharged  under  sentence,  but  before  the  discharge  was  delivered  to  him  (or 
to  the  officer  in  cliarge  of  the  prison  at  which  he  was  also  to  be  confined  uiuier  the  same 
sentence).  Wiis  amenable  to  the  military  jurisdiction  for  the  trial  and  punishment  of  such 
offense  as  being  still  in  the  military  service.     Ibid.,  330,  par  16. 

Ileld  that  when  the  volunteer  armv  to  which  a  soldier  belonged  was,  at  the  end  of  the 
late  war,  disbanded,  soldiers  absent  in  desertion  ceased  to  be  subject  to  military  juris- 
diction and  became  civilians,  but  thai  their  last  military  record  was  that  of  deserters, 
and  that,  as  to  them,  the  disbandmeiit  of  the  army  did  not  operate  as  a  discharge  from 
the  service.     Ibid.,  ]mr.  17. 

Held  that  an  officer  ctmld  not,  by  procuring  himself  to  be,  orconseniing  to  being, 
placed  under  a  conservator  as  an  haliitual  drunkard,  in  the  form  prescribed  by  the  local 
law,  withdraw  himself  from  the  military  jurisdiction;  but  that  he  remained  amenable  to 
trial  and  iiunishment  for  offenses  coinnntted  prior  to  such  proceeding  and  within  the 
period  of  limitation.     Ibid..  381,  par.  19. 

Held  that  an  ac(piittal  of  a  soldier  by  a  civil  court  on  an  indictment  for  larceny  was 
no  bar  to  his  trial  by  court-martial  for  the  same  act,  charged  under  the  62d  Article 
of  War.  And  so  held  in  a  case  of  an  acquittal  by  a  civil  court  of  an  officer  who  had 
committed  a  homicide  of  another  officer  in  the  course  of  an  altercation  in  the  presence 
of  enlisted  men  at  a  military  post.  Ibid.,  par.  21. 
'  Ibid.,  325,  par.  7,  and  cases  cited. 
» Ibid.,  326,  par.  8;  705,  par.  2;  744,  par.  4. 


Wii  MILITARY  LAW. 

not   operative  in   time  of  peace:  they  become  so  only  in  time  of  war  and  iu 
the  immediate  theatre  of  military  operations.' 

The  Offense  Charged  must  be  a  Violation  of  Military  Law. — It  is  a  well- 
established  principle  of  our  constitutional  law  that  there  can  be  no  criminal 
oflfense  against  the  United  States  which  has  not  been  made  sacli  by  an  enact- 
ment of  Congress.  This  principle  applies  with  equal  force  to  military 
offenses.  In  the  chapter  relating  to  Charges  and  Specifications  it  has  been 
shown  that  a  military  charge  to  be  valid  must  allege  an  offense  which  is 
based  upon,  or  consists  in,  the  violation  of  a  particular  statute  or  Article  of 
War;  since  no  other  offense,  whatever  its  character  or  however  harmful  in 
its  effects  upon  military  discipline,  is  triable  by  a  military  tribunal. 

I'here  are  some  cases,  however,  in  which  the  authority  of  several  statutes 
must  be  appealed  to  in  order  to  constitute  a  military  offense;  one  statute 
defining  the  crime,  and  the  other  conferring  power  upon  a  particular 
court-martial  to  try  and  punish  the  offense.  The  58th  Article  of  War  is  an 
example  of  this  class;  the  Article  confers  jurisdiction  upon  general  courts- 
martial,  iu  time  of  war,  to  try  certain  specific  offenses  therein  named;  for 
definitions  of  those  offenses,  however,  the  law  of  the  State  or,  in  the  absence 
of  a  statutory  definition,  the  common  law  must  be  referred  to.  In  other 
cases  courts-martial  are  given  jurisdiction  over  certain  wrongful  acts  which 
are  not  expressly  described  in  the  statute  conferring  jurisdiction,  or  are 
described  only  in  general  terms.  Such  is  the  case  in  respect  to  offenses 
included  within  the  terms  of  the  61st  and  62d  Articles  of  War, 

Pleas  in  Bar  of  Trial. — It  has  been  seen  that  a  plea  to  the  jurisdiction 
denies  the  power  of  the  court-martial  to  hear  a  case  referred  to  it  for  trial. 
In  strictness  a  plea  in  bar  of  trial  admits  the  jurisdiction  of  the  court  as  to 
the  class  of  cases,  and  the  general  amenability  of  the  accused  to  trial,  but, 
for  reasons  stated,  denies  the  right  of  the  court  to  try  the  particular  case 
before  it.  Such  a  plea  in  bar  would  be  appropriate  in  any  one  of  the  follow- 
ing cases: 

A  Previous  Acquittal  or  Conviction  of  the  Same  Offense. — ^The  Fifth 
Amendment  to  the  Constitution  provides  that  no  person  shall  for  the  same 
offense  "  be  twice  put  in  jeopardy  of  life  or  limb."  '  A  similar  but  some- 
what less  extensive  immunity  is  secured,  as  to  offenders  against  military  law, 

'  Dig.  J.  A.  Gen.,  325,  par.  7;  336.  par.  8.  It  is  inaccurately  stated  in  the  report  of 
the  case  of  Rennor  vs.  Bennett,  21  Ohio  St.,  4;M,  (December.  1871,)  that  no  inmate  of  the 
National  Home  had  ever  been  subjected  to  a  trial  by  court-martial.  The  instance  re- 
ferred to  in  the  Digest  of  Opinions  of  the  Judge- Advocate  General  (page  829,  par.  15,, 
however,  is  the  only  one  known  of  stich  a  trial. 

'  A  person  is  in  jeopardy  when  put  upon  trial,  before  a  court  of  competent  juris- 
diction, under  an  indictment  or  information  sufficient  in  form  and  substance  to  sustain  a 
conviction,  and  a  jury  has  been  charged  with  his  deliverance— that  is,  empaneled  and 
sworn.  Cooley,  Const.  Law,  327,  328,  cases;  Anderson,  Law  Diet.,  tit h;  Jeopardy.  572 
and  cases  cited.  But  see  Dig.  J.  A.  Gen.,  118,  par.  1  :  U.  S.  vs.  Martin,  28  Fed.  Rep., 
812  :  Kelly  ts.  U.  S.,  27  ibid.,  616  ;  U.  S.  vs.  Barnhart,  22  ibid.,  285  ;  U.  S.  vt.  Van  Vleet, 
22  ibid.,  35. 


TUE  INCIDENTS  OF   THE   TRIAL.  101 

by  the  provision  of  the  102d  Article  of  War  tliat  "  no  person  shall  be  tried 
a  second  time  for  the  same  offense."  The  term  "  tried  "  employed  in  this 
Article  means  duly  prosecuted,  before  a  court-martial,  to  a  tinui  conviction 
or  ac(juittal;  tlierefore  an  otiicer  or  soldier  after  having  been  duly  con- 
victed or  acquitted  by  such  a  court  cannot  be  subjected  to  a  second  military 
trial  for  the  same  offense,  except  by  and  upon  his  own  waiver  and  consent.' 
Such  consent  may  be  express,  as  in  the  case  of  an  a])plication  of  the  accused 
for  a  new  trial,  or  implied  by  his  waiver,  at  the  second  trial,  of  the  objection 
based  upon  a  former  trial  for  the  same  offense.' 

Where  the  accused  has  been  once  duly  convicted  or  acquitted,  he  has 
])een  "  tried  "  in  the  sense  of  the  Article,  and  cannot  be  tried  again,  against 
his  will,  though  no  action  whatever  be  taken  upon  the  proceedings  by  the 
reviewing  authority,  or  though  the  proceedings  and  findings  (and  sentence, 
if  any)  be  wholly  disapproved  by  him.  It  is  immaterial  whether  the  former 
conviction  or  acquittal  is  approved  or  disapproved.' 

Where  an  officer  or  soldier  has  been  duly  acquitted  or  convicted  of  a 

'  Dig.  J.  A.  Gen.,  118,  par.  1.  Ueld  that  there  was  no  "second"  trial,  in  the  sense 
of  the  Article,  iu  the  following  cases,  viz.:  where  tJie  party  after  being  arraigned  or 
tried  before  a  court  whicii  was  illegally  constituted  or  composed,  or  was  without  juris- 
diction, was  again  brought  t(j  trial  before  a  conipiteut  tribunal  ;  where  the  accused,  hav- 
ing been  arraigned  upon  and  having  pleaded  to  certain  charges,  was  rearraigned  upon  a 
new  set  of  charges  substituted  for  the  others,  which  were  withdrawn  ;  where  one  of 
several  distinct  charges  upon  which  the  accused  had  been  arraigned  was  withdrawn 
pending  the  trial,  and  the  accused,  after  a  trial  and  tinding  by  the  co\irt  upon  the  other 
ciiarges,  was  brought  to  trial  anew  upon  the  charge  thus  witlidrawn  ;  where,  after  pro- 
ceedings commenced,  but  discontinued  without  a  finding,  the  accused  was  brought  to 
trial  anew  upon  the  same  charge  ;  where,  after  having  been  acquitted  or  convicted  upon 
a  certain  charge  which  did  not  in  fact  stale  the  real  oflfense  committed,  the  accused  was 
brought  to  trial  for  the  same  act,  but  upon  a  charge  setting  forth  the  true  offense  ; 
where  the  accused  was  brought  to  trial  after  having  had  his  case  fullj'  investigateil  by  ji 
different  court,  which,  however,  failed  to  agree  in  a  finding  and  was  consequently  dis- 
solved :*  where  the  first  court  was  dissolved  because  reduced  below  five  members  by 
the  casualties  of  the  service  pending  the  trial ;  where,  for  any  cause,  there  was  a  "mis- 
trial." or  the  trial  first  entered  upon  was  terminated,  or  the  court  dissolved  at  any  stage 
of  the  proceedings  before  a  final  acvpiittal  or  conviction.     Ibid.,  par.  '6. 

A  soldier  was  convicted  of  "manslaughter,"  but  the  findings  and  sentence  were  dis- 
approved. He  WHS  then  brought  to  trial  on  a  charge  of  mutiny,  as  committed  on  the 
occasion  of  the  homicide,  tlie  latter  being  alluded  to  in  the  specification  as  an  incidental 
( ircumstance  of  aggravation,  and  was  found  guilty  and  sentenced.  Held  that  the  accused 
was  not,  in  the  sense  of  this  Article,  "tried  a  second  time  for  the  same  offense,"  the 
mutiny  not  consisting  in  the  act  of  homicide,  but  constitutinu:  a  distinct  offense.  Ibid., 
130.  par.  8. 

There  cannot,  in  view  of  this  Article,  be  a  second  trial  where  the  offense  is  really 
the  same,  tliough  it  may  be  charged  under  a  different  description  and  under  a  different 
Article  of  War.  Thus  where  the  Government  elects  to  try  h  soldier  under  the  32d 
Article  for  "absence  without  leave,"  or  xmder  the  42d  for  "  lying  out  of  quarters,  '  and 
the  testimony  introduced  develops  the  fact  that  the  offense  was  desertion,  the  accu.sed 
after  an  acquittal  or  conviction  cannot  legally  be  brought  a  secimd  time  to  trial  for 
the  same  absence  ciiarged  as  a  desertion.     Ibid.,  par.  9. 

'  That  an  accused  may  waivf  objection  to  a  second  trial  was  held  l)y  Attorney-General 
Wirt  in  1818,  and  has  since  been  regarded  as  settled  law.  1  Opin.  Att.-Gen.,  2'o'd.  See, 
also,  6  id.,  205  ;  Dig.  J.  A.  Gen..  118.  par.  1. 

'  Ibid.,  119.  par  5.     (.""inpare  .Macomb,  §  159. 

•  U.  S.  vs.  Perez,  9  Wheal.,  57'J. 


102  MILITARY  LAW. 

specific  offense,  he  cannot,  against  his  consent,  be  brought  to  trial  for  a 
minor  offense  iuchided  therein,  anel  an  acquittal  or  conviction  of  which  was 
necessarily  involved  in  the  finding  upon  the  original  charge.  Thus  a  party 
convicted  or  acquitted  of  a  desertion  cannot  afterwards  be  brought  to  trial 
for  an  absence  without  leave  committed  in  and  by  the  same  act.' 

New  Trials. — It  has  been  seen  that  a  military  person  once  duly  tried  by 
a  court-martial  of  competent  jurisdiction  cannot,  against  his  consent,  be  tried 
a  second  time  for  the  same  offense.'  He  may  waive  his  privilege  in  this 
regard,  however,  and  request  a  new  trial  upon  the  same  charges. 

Xew  or  second  trials  have  been  of  the  rarest  occurrence  in  our  military 
service.  They  have  only  been  had,  and  are  only  authorized,  where  the  sen- 
tence adjudged  upon  the  first  trial  has  been  disapproved  by  the  reviewing 
authoritv  and  the  accused  has  asked  for  a  second  trial.  It  was  held  at  an 
earlv  period  by  Attorney-Greneral  Wirt '  that  the  prohibitory  provision  of  the 
Articles  of  War  (now  contained  in  Art.  102)  that  "  no  person  shall  be  tried 
a  second  time  for  the  same  offense  "  did  not  apply  to  a  case  in  which  the 
accused  himself  requested  a  new  trial,  the  objection  to  such  trial  being 
deemed  to  be  subject  to  be  waived  by  the  consent  and  action  of  the  party 

tried." 

The  privilege  of  applying  for  and  being  allowed  a  retrial — for  it  is  not  a 
right,  since  the  trial  may  be  granted  or  denied  at  the  discretion  of  the  proper 

superior has  naturally  been  but  seldom  exercised;  parties  convicted  and 

sentenced  being  in  general  satisfied  that  the  proceedings  in  their  cases  should 
be  terminated  by  the  disapproval,  on  whatever  grounds  the  same  may  be 
based.  After  a  sentence  has  been  duly  approved  and  has  taken  effect,  the 
granting  of  a  new  trial  is  of  course  beyond  the  power  of  a  military  com- 
mander or  the  President.' 

Where  an  officer  or  soldier  who  has  been  acquitted  or  convicted  of  a  crim- 
inal offense  by  a  civil  court  is  brought  to  trial  by  a  court-martial  for  a  mili- 
tarv  offense  involved  in  his  criminal  act,  he  cannot  plead  "  a  former  trial  " 
in  the  sense  of  the  102d  Article.  So  where  the  trial  for  the  military  offense 
has  preceded  the  civil  trial  he  cannot  plead  autrefois  acquit  or  convict  to  an 
indictment  for  the  civil  crime  committed  in  and  by  the  same  act.*  This  for 
the  reason  already  stated  that,  while  the  act  or  omission  out  of  which  the 
offenses  grew  is  the  same,  the  offenses  themselves  are  quite  separate  and  dis- 
tinct; one  being  a  criminal  offense  created  by  the  common  law,  or  by  statute. 


'  Dip.  J.  A.  Gen.  118.,  par  3  ;  O'Brien,  277 ;  Rules  for  Bombay  Army,  45. 

«  See  the  ]02(1  Article  of  War,  past. 

=  1  0[)in.  Att.Gen.,  233  ;  fi  id.,  205. 

*  DW.  J.  A.  Gen.,  536.  Tlie  priiK;ipal  instances  of  new  trials  in  our  practice  are  that 
of  Capt~iin  Hall  (in  wliose  case  Mr.  Wirt's  opinion  was  given)  and  those  of  which  the 
proceedings  are  published  in  G.  O.  18,  War  Dept.,  1861,  and  G.  O.  8,  9,  and  26,  First 
Mil.  Dist.,  1869. 

'  Dig.  J.  A.  Gen.,  119,  par.  4. 


THE  INCIDENTS  OF  THE   TRIAL.  103 

in  the  jurisdiction  within  which  it  was  committed,  the  other  a  military 
offense  and,  as  such,  created  by  the  Articles  of  War,  or  by  an  enactment 
of  Congress  of  similar  character.' 

Pardon. — A  pardon  is  an  act  of  grace  proceeding  from  the  power 
entrusted  with  the  execution  of  the  laws,  which  exempts  the  individual  upon 
whom  it  is  conferred  from  the  punishment  which  the  law  inflicts  for  the 
crime  which  he  has  committed."  Although  the  issue  of  a  pardon  in  a  par- 
ticular case  is  an  ofiicial  act  on  the  part  of  the  pardoning  power,  it  is  also 
personal  in  the  sense  that  it  is  not  in  general  publicly  promulgated  and  so 
does  not  form  a  part  of  that  body  of  public  acts  and  utterances  of  which  the 
courts  are  required  to  take  judicial  notice.  For  this  reason  a  pardon  must  be 
pleaded,  that  is,  submitted  to  the  court,  or  brought  to  its  official  knowledge, 
in  accordance  with  the  rules  regulating  the  production  of  documentary  evi- 
dence, in  order  that  the  court  may  give  it  effect  in  support  of  a  plea.'  A 
pardon  may  be  pleaded  in  bar  in  respect  to  the  particular  offense  recited, 
and  the  recital  of  a  specific,  distinct  offense  in  such  an  instrument  limits 
its  operation  to  that  offense,  and  such  pardon  does  not  embrace  any  other 
offense  for  which  separate  penalties  and  punishments  are  provided.'  In 
form  a  pardon  is  a  deed,  that  is,  an  instrument  under  seal,  to  the  validity  of 
which  delivery  and  acceptance  are  necessary.     It  may  be  rejected  by  the 


»  It  is  no  objection  to  the  assuming  by  a  court-martial  of  jurisdiction  of  a  mililary 
offense  committed  by  an  officer  or  soldier,  that  be  may  be  amenable  to  trial,  or  may 
actually  have  been  tried  and  convicted,  by  a  criminal  court  of  the  Slate,  elc  ,  for  a 
criminal  offense  involved  in  his  act.  Thus  a  soldier  may  be  tried  for  a  violation  of  Article 
21,  in  strilving  or  doing  other  violence  to  a  superior  officer,  after  liaving  been  convicted 
by  a  civil  tribunal  for'the  criminal  assault  and  battery.  So  an  officer  or  soldier  may  be 
brouirht  to  trial  under  a  charge  of  "conduct  to  the  prejudice  of  good  order  and  military 
discipline"  for  the  military  offense  (if  any)  involved  in  a  homicide  or  a  larceny  of 
which,  as  a  civil  offense,  he  has  been  acquitted  or  convicted  by  a  crimiiiul  court.  And 
the  reverse  is  also  law,  viz.,  that  the  civil  court  may  legally  take  cogni/.auce  of  the 
criminal  offense  involved  without  regard  to  the  fact  that  the  party  has  been  subjected 
to  a  trial  and  conviction  by  court-martial  for  his  breach  of  military  law  or  discipline. 
In  such  instances  the  act  committed  is  an  offense  against  the  two  jurisdictions  and  may 
legally  subject  the  offender  to  be  tried  and  punished  under  both.  Dig.  J.  A  Gen., 
328,  par.  12.  See,  also,  Moore  m.  Illinois,  14  How.,  19,  20;  Fox  vs.  Ohio,  5  ibid.,  432; 
U.  S.  vs.  Marigold,  9  How.,  560. 

Hdil  that  an  acquittal  of  a  soldier  by  a  civil  court,  on  an  indictment  for  laiceny,  was 
no  bar  to  his  trial  by  court-martial  for  the  same  act,  charged  under  the  G2d  Article  of 
War.  And  so  held  in  a  case  of  an  acipiitlal  by  a  civil  court  of  an  officer  who  had  com- 
mitted homicide  of  another  officer  in  the  course  of  an  altercation  in  ih  •  presence  of 
enli'^ted  men  at  a  military  post.     Ibid.,  331,  par.  21.     See,  also,  page  120.  il>id..  par.  7. 

Tiie  jurisdiction  of  courts-martial  is  non-territorial.  In  a  case  of  an  officer  who 
exhibited  liinuself  in  a  drunken  condition  at  a  public  bail  in  Me.vico,  held  tliat  liis  offense 
was  cognizable  bv  a  court-martial  of  the  United  States  subsequently  convened  in  Texas 
by  tlie^department  commander.  This  for  tlie  reason  that  the  military  jurisdiction  does 
not  recognize  territoriality  as  an  essential  element  of  military  offenses,  but  extends  to 
the  same  wherever  committed  :  a  principle  that  is  amply  confirmed  by  the  comprehen- 
sive provision  of  the  64th  Article  of  War.     Dig.  J.  A.  Gen.,  331,  par.  20. 

5  U.  S.  vs.  Wilson.  7  Pet.,  150,  161  ;  Coke,  3d  Inst.,  233. 

»  Ibid..  Ex  parte  Reno.  66  Mo..  266. 

*  Ei  parte  Weimer.  8  Biss.,  321. 


104  MILITARY  LAW. 

person  to  whom  it  is  tendered,  and  if  rejected  there  is  no  power  in  the  court 
to  force  it  upon  the  individual.' 

Time  of  Exercise;  Effects;  Limitations  upon  the  Pardoning  Power. — 
The  President  of  the  United  States  has  the  conditional  power  to  pardon  as 
well  before  trial  and  conviction  as  afterwards;  but  it  is  a  power  only  to  be 
exercised  with  reserve  and  for  exceptional  considerations.'  It  is  also  com- 
petent for  the  President  to  grant  a  pardon  after  the  expiration  of  the  term 
of  sentence,  thereby  relieving  from  consequential  disabilities.'  The  power 
to  pardon  does  not  extend  to  cases  of  impeachment;  nor  can  a  pardon 
operate  retroactively,  or  to  restore  money  or  property  forfeited  by  conviction 
or  which  has,  by  judicial  process,  become  vested  in  other  persons.*     Subject 


'  U.  S.  vs.  Wilson.  7  Pet.,  150;  In  Matter  of  Dupwy,  3  Benedict,  307;  C  Opiu.  Att.- 
Geu.,  403.  The  President  is  empowered,  by  Ait.  II,  Sec.  2,  §  1,  of  the  Constitutiou  "  to 
grant  pardons  for  offenses  against  the  United  States  ":  and  a  pardon,  like  a  deed,  must, 
in  order  to  take  effect,  be  delivered  to  and  accepted  by  the  party  to  whom  it  is  granted. 
Dig.  J.  A   Gen.,  5.51,  par.  1. 

5  6  Opin.  Att.-Gen.,  20  ;  1  ibid.,  341  ;  3  ibid.,  275  ;  5  ibid.,  687  ;  Ex  parte  Garland, 
4  Wall..  333. 

3  Stetler's  Case,  1  Phil.,  1,  38;  Com.  m.  Bush,  2  Duv.  (Ky.).  264. 

*  Knote  vs.  U.  S.,  10  Ct.  Cls.,  397,  406  ;  U.  S.  vs.  Si.K  Lots  of  Ground,  1  Woods,  234  ; 
Osboru  vs.  U.  S.,  91  U.  S..  474.  477  ;  5  Opin.  Att.-Gen.  (2d  ed  ),  532. 

A  jiardon  cannot  reach  or  remit  a  fully  executed  sentence,  though  the  same  may  have 
been  unjustly  imposed.  A  pardon  cannot  of  course  undo  a  corporal  punisiiment  fully 
inflicted  ;*  nor  can  it  avail  to  restore  to  the  army  an  officer  or  .soldier  legally  .separated 
therefrom  and  made  a  civilian  by  a  duly  approved  sentence  of  dismissal  f  or  by  a  dis- 
honorable di.scharge.  Nor  can  it  restore  a  tine  paid,  or  pay  forfeited,  when  the  amount 
of  the  same  has  once  gone  beyond  the  control  of  the  Executive  and  been  covered  into 
the  U.  S.  treasury  and  become  public  funds:};  whatever  may  have  been  the  merits  of  tlie 
ca.se.  Otherwise,  however,  where  the  money  still  remains  in  the  hands  of  a  military 
disbursing  officer  or  other  intermediate  official. tj  Where,  however,  any  portion  of  a 
punishment  xem».\us  unexecuted,  that  jiorlion  may  be  remitted  by  the  pardoning  pQwer.[] 
Congress  alone  can  restore  pay  fully  forfeited  to  the  United  States,  or  oiherwise 
pecuniarily  indemnify  an  officer  or  soldier  for  the  consequences  of  a  legally  executed 
sentence.     Ibid.,  552,  par.  4. 

Held  (.January,  1892)  tiiat  it  was  beyond  the  power  of  Congress  to  undo  the  executed 
legal  judgment  of  a  court-martial,  and  that  it  could  not  therefore  lawful]}'  authorize 
the  President  or  the  Secretary  of  War  to  pardon  or  remit  a  legal  sentence  of  such  a 
court  adjudged  in  18(56  and  long  since  duly  and  fully  executed.     Ibid.,  557,  par.  16. 

A  pardim  by  the  President  will  reach  and  remove  a  continuing  disqualification  or 
disability  incident  upon  the  commission  of  an  offense  against  the  United  States,  or  upcm 
a  conviction  by  a  United  States  court  or  a  court-martial,  but  not  a  disciualitication 
incurred  (as  upon  conviction  of  grand  larceny)  under  the  laws  of  a -Sto<f.  Ibid.,  par. 
17. 

A  pardon  is  not  retroactive.  It  cannot  remit  an  executed  iminshment,  or  restfire  an 
executed  forfeiture  resulting  either  by  operation  of  law  or  sentence.  It  cannot,  there- 
fore, restore  the  forfeitures  incident  upon  desertion.  Further,  it  cannot  modify  past 
history,  or  reverse  or  alter  the  facts  of  a  completed  record.  From  and  after  the  taking 
effect  of  a  pardon  the  recipient  is  innocent  in   law  as  to  any  subsequent  contingencies, 

*  Sef  8  Opiiis   Att.-Gen..  284 

+  \i  Opitis.,  .548  ;  Ex  parte  Garland.  4  Wallace,  38t. 

%  H  Opins.  Att.Cxen  ,  :-!.30  ;  16  id  1.  This,  because  the  .?ame  Constitution  wljich  conveys  the  pardon- 
ing power  contains  a  provision  "  of  equal  efficiency  "  (Art.  1.  Sec  9.  §  Oi  to  the  effect  that  money  in 
the  public  treasury  shall  not  be  withdrawn  except  by  an  appropriation  by  Act  of  (V)ngre.ss.  8  id..  281. 
Compare,  in  this  connection,  Knote  vs.  United  States,  b  Otto.  149.  where  it  was  held  that  an  executive 
pardon  would  not  entitle  a  party  to  the  proceeds  of  certain  personal  effects,  confiscated  and  sold  by 
the  United  States  as  the  pioperty  of  an  enemy,  after  such  proceeds  had  been  duly  paid  into  the 
treasiirv. 

S  14  Opins.  Att.-Gen.,  601. 

I  And  the  Executive,  in  the  exercise  of  the  pfirdonin^  power.  "  may  pardon  or  remit  a  portion  of 
the  sentence  at  one  time  and  a  different  portion  at  another."    .'3  Opins.  Att.  Gen.,  418. 


TUE  INCIDENTS  OF  THE  TRIAL.  105 

to  the  qualifications  above  stated,  however,  a  pardon  issued  to  and  accepted 
by  an  individual  operates  to  exempt  its  beneficiary  from  the  legal  conse- 
quences of  the  offense  which  he  has  committed,  and  to  restore  him  to  the 
legal  status  occupied  by  him  at  the  time  of  its  commission. 

Conditional  Pardons. — It  is  settled  that  a  pardon  may  be  conditional — 
may  be  granted  upon  a  condition  precedent  or  subsequent.'  Thus  where 
the  President,  by  his  proclamation  of  March  11,  1865,  granted  a  pardon  to 
all  deserters  "on  condition  that  "  they  duly  returned  (within  a  certain  time 
stated)  to  their  regiments,  etc.,  and  served  the  remainder  of  their  original 
terms  and,  in  addition,  a  period  equal  to  the  time  lost  by  desertion — held 
that  a  soldier  who  duly  returned  under  this  proclamation,  but  after  remain- 
ing with  his  regiment  a  portion  of  the  period  indicated  abandoned  the 
service  and  went  to  his  home,  was  liable  (the  legal  period  of  limitation 
fixed  by  the  103d  Article  of  War  not  having  expired)  to  be  brought  to  trial 
for  his  original  desertion;  the  condition  subsequent  upon  which  liis  pardon 
for  the  same  had  been  extended  not  having  been  performed.' 

Pardoning  Power,  How  Exercised. — In  the  practice  of  courts-martial, 
the  power  to  pardon  may  be  exercised  in  a  less  formal  manner  than  that 
above  described,  and  may  be  exercised;  First  by  proclamation.  Proc- 
lamations of  pardon,  or  amnesty,  originate  with  the  President,  and  are 
embodied  in  formal  proclamations  specifying  the  class  or  classes  that  are 
included  in  the  amnesty,  and  the  conditions  that  must  be  complied  with 


but  the  pfirdou  does  not  anniliihite  the  fact  that  he  was  guilty  of  tlie  oflfense.  The 
pardou  iudeeii  i>roceeds  upon  the  theory  that  the  party  was  guilty  in  fact.  The  asking 
for  it  is  au  admission  of  guilt,  and  the  granting  of  it  is  a  recognition  of  the  fact  of 
guilt.*  Thus  ?ield  that  the  President  could  not  by  a  pardon  remove  the  chnrge  of 
<ieserti()n  fron\  the  record  of  a  former  soldier,  who  had  long  since  become  a  civilian  by 
reason  of  the  mu.ster-out  and  nonexistence  of  the  volunteer  army  to  which  he  had 
belonged  in  the  late  war  ;  and  that  tlie  effect  of  his  pardon  would  not  be  to  give  him  an 
honorable  discharge.  A  pardon  would  not  only  not  remove  a  charge  of  desertion,  but 
would  in  fact  confirm  it,  and  constitute  an  additional  reason  for  retaining  it  on  the 
record.  And  a  party  caiuiot  by  an  executive  act  be  discharged  from  the  service  unless 
he  is  in  the  service.     Ihid..  556,  par.  15. 

'  Ex  parte  Wells,  18  How.,  307;  Osborn  vs.  U  S.,  91  U.  S.,  474;  U.  S.  vs.  Wilson, 
7  Pel..  150;  Com.  vs.  Huggerty,  4  Brewster,  326;  6  Opin.  Att.-Gen..  405. 

»  Dig.  J.  A.  Gen.,  554,  par.  9.  The  language  of  the  Constitution  is  such  (hat  the 
power  of  the  President  to  pardou  conditionally  is  not  one  of  inference,  hut  is  <  onferred 
in  terms,  the  language  being  "to  erant  reprieves  and  pardons,"  which  in(;ludes  ahsolute 
as  well  as  conditional  pardons.  Under  this  power  the  I'resident  can  grant  a  conditional 
pardon  to  a  person  under  sentence  of  death,  offering  to  commute  that  punishment  into 
au  imprisonment  for  life.  If  this  is  accepted  by  the  convict,  he  has  no  right  to  contend 
that  the  pardon  is  absolute  and  the  condition  of  it  void.  Ex  parte  Wells,  is  How.,  307; 
Osborn  vs.  U.  S.,  91  U.  S  ,  474;  U  S.  vs.  Wilson,  7  Pet..  150.  When  a  pardon  is  granted 
witli  conditions  annexed,  the  conditions  must  be  performed  before  the  pardon  is^of  anv 
effect.  Waring  vs.  U.  S..  7  C.  Cls  R  ,  501.  One  who  claims  the  benefit  of  a  pardon 
must  be  held  to  strict  compliance  with  its  conditions.  Haym  ts.  U.  S  ,  7  C.  Cls.  R., 
443;  Scott  vs.  U.  S.,  8  ibid..  457.  The  condition  annexed  to  a  pardon  must  not  be  im- 
possible, unusual,  or  illegal;  but  it  may,  with  the  consent  of  the  prisoner,  be  any 
punishment  recognized  by  the  statutes,  or  by  the  common  law  as  enforced  by  the  State. 
Lee  vs.  Murphy,  23  Grat.  (Va.),  789. 


*  See  Bit  parte  Garland,  4  Wallace,  333  ;  Knote  vs.  U.  S.,  95  U.  S.,  153. 


106  MILITARY  LAW. 

in  order  to  secure  the  benefits  of  the  prochimation.  Such  proclamations 
have  been  issued,  in  several  instances,  in  behalf  of  deserters  and  absentees 
without  leave.  Second,  by  remission  of  a  military  sentence.  Remission  is 
a  partial  exercise  of  the  pardoning  power,  relieving  the  person  from  a 
punishment  or  the  unexecuted  portion  of  a  punishment,  but  not  pardoning 
the  otfense  as  such,  or  removing  the  disabilities  or  penal  consequences  attach- 
incr  thereto  or  to  the  conviction.'  It  originates  with  the  reviewing  authority 
and  operates  to  reduce  the  severity  of  the  punishment  imposed  to  the  extent 
set  forth  in  the  order  of  promulgation.  This  power,  as  will  presently  be 
seen,  is  exercised  after  the  trial  has  been  had  and  sentence  pronounced,  amd 
the  action  of  the  reviewing  authority,  by  way  of  remission,  is  usually 
embodied  in  the  order  announcing  the  proceedings  of  the  court.'  Third,  the 
offense  may  be  pardoned,  or,  to  speak  more  accurately,  condoned,  before  the 
prosecution  has  been  commenced,  by  the  restoration  of  an  accused  person  to 
duty,  without  trial,  by  the  authority  to  order  such  trial.  This  form  of  con- 
structive pardon  will  presently  be  explained. 

Power  of  Reviewing  Officers  to  Pardon  or  Mitigate. — The  Articles  of 
War  confer  upon  the  several  reviewing  officers  a  limited  power  to  pardon 
or  mitigate  sentences  imposed  by  courts-martial  submitted  to  them  for 
approval.  The  extent  of  and  the  limitations  upon  this  power  will  be  dis- 
cussed elsewhere.'' 

Constructive  Pardons. — In  addition  to  the  methods  of  exercise  above 
described,  an  otfense  may  be  condoned  or  pardoned  by  implication,  as  a 
result  of  certain  conduct  on  the  part  of  a  military  superior,  the  effect  of 
which  is  to  indicate  a  purpose  on  his  part  to  abandon,  or  desist  from,  the 
prosecution  of  a  particular  offender.  Such  condonation  of  an  offense  is 
known  as  a  constructive  pardon,  and  as  such  may  be  made  the  basis  of  a 
plea  in  bar.  Where,  for  example,  an  officer  or  soldier  under  charges  is 
released  from  arrest  or  confinement  and  restored  to  duty  by  the  authority 
competent  to  order  his  trial,  there  is  said  to  be  a  constructive  pardon  which 
may  properly  be  pleaded  in  bar  of  trial.  To  constitute  such  a  pardon,  how- 
ever, a  prosecution  must  have  been  instituted  or  a  legal  sentence  imposed; 
and,  to  be  operative  as  a  pardon,  the  release  must  have  been  ordered  by  the 
authority  competent  to  order  the  trial  or  to  review  the  proceedings  and,  in 
consequence,  to  exercise  the  power  of  pardon  or  mitigation.* 

'  Dig.  J.  A.  Gen.,  657,  par.  1.  The  pardoning  of  "  punishment,"  authority  for  which 
is  vestefl  in  certain  commanders  by  the  113th  Article  of  Wnr,  is  remission.  An  oflfender 
can  be  completely  rehabilitated  only  by  a  full  iKudon  granted  under  the  pardoning 
power  of  the  Constitution.*     Ihid. 

«  For  a  further  discussion  of  this  subject,  see  the  chapter  entitled  The  Reviewing 

AUTHOKITY. 

'See  chapter  entitled  The  Reviewing  Officer;  see,  also,  the  title  "Pardon,' 
gupra. 

*  While  to  reslore  to  or  place  upon  duty  an  officer  or  soldier  when  under  arrest  or 

»  Ex  parte  Garland,  4  Wallace,  380. 


Tin-:  lycwENTs  of  the  rrdAL.  107 

Pleading.— To  constitute  a  valid  plea  in  bar  of  trial,  a  pardon,  as  has 
been  seen,  must  be  produced  and  submitted  to  the  court  in  support  of  the 
l)lea.  Such  pardon,  may  be  a  formal  instrument  under  seal,  or  may  take 
the  form  of  a  written  restoration  to  duty  without  trial;  it  may  also  appear 
as  a  proclamation,  granting  pardon  to  certain  classes  of  ollenders,  in  which 
c-ise  the  burden  rests  upon  the  accused  of  showing  that  he  is  included  within 
the  classes  mentioned  in  the  pardon  or  amnesty.  A  constructive  pardon 
will  ordinarily  be  proved  by  the  testimony  of  witnesses  as  to  its  source  and 
authority,  as  well  as  to  the  extent  and  terms  of  the  alleged  release. 

PI.HAS    IX    ABATEMENT. 

Nature  and  Character. — The  term  abatement  (from  the  old  French 
ahatlre,  to  destroy)  is  applied  in  pleading  to  a  motion  to  abate,  that  is,  to 
destroy,  or  set  aside,  a  particular  specification  to  which  it  is  addressed,  on  the 
ground  tiiat  it  contains  some  defect  which  is  alleged  to  be  fatal  to  the  main- 
tenance of  the  action.  Tleas  in  abatement,  nnlike  pleas  to  the  jurisdiction 
or  in  bar  of  trial  (which,  when  properly  based,  serve  to  absolutely  defeat  the 
action),  are  merely  dilatory  in  character  and  serve  only  to  defer,  or  delay  a 
particular  trial.  For  this  reason  they  are  not  only  not  favored  in  military 
practice,  but,  in  accordance  with  the  rules  of  procedure  in  civil  cases,  pleas 
of  this  kind  are  required  to  contain  such  data  as  will  enable  the  defective 
specification  to  be  amended  or  corrected. 

Pleas  in  abatement  usually  relate  to  misnomers  in  the  specifications,  to 
false  additions,  as  when  an  accused  is  described  by  an  erroneous  designation 
or  an  incorrect  title  of  office,  and  to  cases  described  by  the  term  idem  sotiaiis, 
where  the  name  of  an  accused  person,  in  the  plea  and  specification,  though 
spelled  differently,  are  substantially  identical  in  sound.' 

charges  on  account  of  an  alleged  offense  would  not  probably  in  tbis  country,  to  the 
same  extent  as  in  England,*  be  regarded  as  operating  as  a  condonation  of  the  offense, 
the  prouiotion  of  an  otbcer  while  under  arrest  on  charges  has  been  viewed  as  a  con- 
structive p  irdon  ot  the  offense  or  offenses  on  account  of  which  he  was  arrested.f  But 
held  that  such  n  promotion  could  not  operate  as  a  pardon  of  other  offenses  committed  by 
him,  of  the  commission  of  which  no  knowledge  was  had  by  the  Executive  at  the  date 
of  tlie  promotion.     Dig.  J.  A.  Gen.,  558,  par.  7. 

While  ordering  or  authorizing  an  ofHcer  or  soldier,  when  under  sentence,  to  exercise 
a  command  or  perform  any  other  duty  inconsistent  with  the  continued  execution  of  his 
sentence  has  been  viewed  as  a  constructive  pardon,  held  that  to  allow  an  officer,  while 
under  a  sentence  of  suspen.sion  from  rank,  to  perform  certain  slight  duties  in  closing  his 
accounts  with  the  United  States  could  not  be  regarded  as  having  any  such  effect 
Ibid.,  par.  8. 

Held  that  a  withdrawal  by  a  department  commander  of  a  pending  charge  against  a 
soldier  upon  his  giving  a  pledge  to  abstain  in  the  future  from  the  conduct  which  was 
the  subject  of  the  charge  did  not  operate  as  a  pardon  and  could  not  be  pleaded  as  such. 
Had  it  been  done  l)y  an  order  of  the  President,  it  could  have  had  no  further  operation 
than  as  a^Mafli-conditional  pardon,  leaving  the  charge  legally  renewable  upon  a  repetition 
of  tlie  offense.     Ibid..  557,  par.  18. 

'  Faust  M.  U.  S.,  136  U.  S.,452. 

*  See  Clode,  Mil.  Forces  of  the  Crown,  toI.  i.  p.  173:   Prendergast,  244-5,  in  coun^ction  with  ti»» 
cases  cited  of  Sir  Walter  Raleigh,  Lord  Lucan,  Capt.  Achison,  etc. 
t  8  Opin.  Alt.  Geu.,  ^37. 


108  MILITARY  LAW, 

A  misnaming  or  misdescription  of  the  rank  of  the  accused  in  the  speci- 
fication should  be  taken  advantage  of  by  an  exception  in  the  nature  of  a 
plea  in  abatement.  Where  not  objected  to,  the  error  is  immaterial  after 
sentence,  provided  the  accused  is  sufficiently  identified  by  the  plea  and 
testimony.  It  is  not  essential  to  state  in  a  specification  the  full  Christian 
name  of  the  accused  or  other  party  required  to  be  indicated.  Only  such 
name  or  initial  need  be  given  as  will  be  sufficient  unmistakably  to  identify 

the  party.' 

A  middle  name  or  initial  is  no  part  of  a  person's  name  in  law,  and, 
except  where  it  is  necessary  to  identify  the  individual,  may  be  omitted  from 
the  charge  without  affecting  the  validity  of  the  finding  or  the  execution  of 
the  sentence.  So  a  misnomer  in  a  charge,  consisting  of  an  erroneous 
middle  name  or  initial,  may  be  disregarded  in  a  charge  unless  the  accused 
moves  to  strike  out,  or  interposes  an  objection  in  the  nature  of  a  plea  in 
abatement,  when  he  must  also  state  his  true  name.  The  charge  may  then 
be  amended  accordingly  in  court,  without  delaying  the  proceedings." 

Where  the  Charges  upon  which  an  Accused  Person  is  Arraigned  Diflfer 
Materially  from  those  Served  upon  Him. — As  the  purpose  of  serving  the 
accused  with  a  copy  of  the  charges  and  specifications  is  to  apprise  him  of  the 
exact  nature  of  the  allegation  against  him  and  so  enable  him  to  prepare  his 
defense,  a  material  difference  between  the  copy  furnished  him  and  that  upon 
which  he  is  arraigned  may  be  taken  advantage  of  by  a  plea  in  abatement, 
or  by  a  motion  for  a  continuance,  under  the  93d  Article  of  War,  sis  the  case 
may  be.* 

»  Dig.  J.  A.  Gen.,  239,  par.  13. 

'  Ibid.,  236,  par.  37.  A  material  variance  between  the  name  of  the  accused  in  tlie 
specification  and  in  the  sentence  should,  if  possible,  be  corrected  by  a  re-assembling  of 
the  court  for  a  revision  of  its  .sentence.  If  this  be  rendered  impracticable  by  the  exigen- 
cies of  the  service,  the  sentence  should  in  general  be  disapproved  as  fatally  defective. 
Thus  held  in  a  case  where  the  names  in  the  sentence  and  the  specification  were  entirely 
different,  the  one  being  John  Moore  and  the  other  James  Cunningham;  also  in  cases  in 
which,  while  the  surnames  were  the  .same,  the  Christian  names  were  quite  different,  one 
being  George  and  the  other  William,  etc.;  also  in  a  case  where  the  name  in  the  .sentence, 
though  similar  to  that  in  the  spocilicatinn,  was  not  idem  nontmn,  as  where  the  accused 
was  arraigned  upon  charges  in  which  he  was  designated  as  Woodworth,  but  was  sen- 
tenced under  the  name  of  Woodman.  A  difference,  however,  in  a  middle  initial  is 
not  a  material  variance,  a  middle  name  not  being  an  essential  part  of  the  Christian 
name  in  law.*    Ibid  743 

'  That  the  charges  and  specifications  upoti  which  an  nccused  is  arraigned  differ  in  a 
material  particular  from  those  contained  in  the  copy  served  upon  him  before  arraign- 
ment may  well  constitute  a  suificif-nt  grf)und  for  granting  him  additional  time  for  the 
preparation  of  his  defense.     Dig.  J    A.  Gen.,  109.  par.  4. 

Where  after  arraignment  a  matei  ial  and  snbstnntial  amendment  is  allowed  by  tlie 
court  to  be  made  by  the  judge-advocaie  in  a  specification,  the  effect  of  which  amend- 
ment is  to  necessitate  or  make  desirable  a  fuiilier  pieparation  for  li:s  defense  on  tlie  part 
of  the  accused,  a  reasonable  continuance  for  this  purpose  will  in  general  jiroperly  be 


*  That  the  law  "  reco^rnizes  but  one  Thristian  name."  and  that  the  insertion  or  omission  of  a  middle 
initial  or  initials  "  will  have  no  eflfect  in  rnndeiing  any  pnx^eedinK  defective  in  point  of  law."  see  2 
Opins.  Att.-G^n.,  .3.32;  3  id.,  467:  also  Franklin  vx.  Tallmadge,  ."i  Johns.,  84;  Roosevelt  vs.  Gardinier,  2 
Cow.   463;  State  vs.  Webster,  30  Ark.,  168. 


HIE  J.XC/JJEyj's   OF  TlIl'J  rniAL.  109 

Name  of  the  Accuser  or  Prosecutor. — To  enable  an  accused  person  to 
plead  intelligently,  it  is  necessary  for  him  to  know,  and  he  is  entitled  to 
know,  the  name  and  designation  of  the  accuser  in  the  case.  Ordinarily,  as 
has  been  seen,  the  accuser  is  the  ofTicer  whose  name  is  signed  to  the  copy  of 
the  charges  and  specifications  which  has  been  furnished  the  accused;  if  such 
be  not  the  case  and  the  charges  be  unsigned,  or  the  signature  is  pro  forma 
merely,  or  if  the  objection  when  taken  is  not  admitted  to  exist  by  the  prose- 
cution, the  accused  is  entitled  to  prove  it  by  the  testimony  of  witnesses  like 
any  other  issue.' 

Other  Objections  to  the  Charges,  etc.,  How  Disposed  of. — In  general, 
objections  to  the  charges  or  specifications  in  matters  of  form  should  be 
taken  advantage  of  by  special  pleas  in  the  nature  of  pleas  in  abatement. 
Such  are  objections  to  the  specifications  as  inartificial,  indefinite,  or 
reduiulant;  or  as  misnaming  the  accused  (or  other  person  required  to  be 
specified),  or  misdescribing  him  as  to  his  rank  or  office;  or  as  containing 
insufficient  allegations  of  time  or  place,  etc.  In  such  cases  the  objection 
should  be  raised  by  a  special  plea  in  abatement  or  by  motion,  in  order  that 
errors  capable  of  amendment  may  be  amended  on  the  spot  by  the  judge- 
advocate,  and,  the  plea  of  not  guilty  (or  guilty)  being  then  made,  the 
trial  may  proceed  in  the  usual  manner.  Objections  of  this  class  when  not 
thus  taken  will  properly  be  considered  as  waived  by  the  plea  of  guilty  or 
not  guilty,  and  their  existence  will  not  then  affect  the  validity  of  the  pro- 
ceedings or  sentence.' 

Where,  without  preliminary  objection,  the  accused  pleads  guilty  or  not 
guilty  to  a  specification  in  which  he  is  incorrectly  named  or  described,  such 
plea  will  be  regarded  as  an  admission  by  the  accused  of  his  identity  with  the 
person  thus  desigiuited,  and  he  cannot  thereafter  object  to  the  pleadings  on 
account  of  misnomer  or  misdescription.' 

Facts  and  circumstances  which  are  properly  matters  of  evidence  are  not 
legitimate  subjects  of  pleas;  as,  for  example,  circumstances  going  to  exten- 
uate the  offense.  Thus  the  good  conduct  of  the  accused  in  battle,  subse- 
quent to  the  commission  of  the  offense  charged,  could  not  properly  be 
presented  in  the  form  of  a  plea.  So  the  fact  that  tlie  charge  has  been 
preferred  through  personal  hostility  to  the  accused  is  not  matter  for  a  plea, 
but,  if  desired  to  be  taken  advantage  of,  should  be  offered  in  evidence.' 

Failure  to  Serve  Charges. — It  has  been  seen  that,  by  statute  or  custom 
of  service,  an  accused  person  is  twice  entitled  to  be  informed  of  the  nature 


granted  by  tlie  court.  Dig.  J.  A.  Gen.,  109,  par.  5.  See,  also,  the  title  "  Continu- 
uiifis,"  page  90,  ante. 

'  Dig.  J.  A  Gen.,  84,  par.  H;  'i'^It,  par.  14:  ibid.,  2:i~).  pir.  ;}2.  See,  also,  in  this 
connection,  tiie  chapter  entitled  'I'iik  Ct)NSTiTUTioN  of  Cocuts-maktial. 

'  Dig.  J.  A.  Gen..  590,  par.  8. 

'  IiUtn. 

*  Ibid.,  rm,  par.  10. 


110  MILITARY  LAW. 

and  character  of  the  offense  Avitli  whicli  lie  is  cluirged.'  He  becomes  so 
entitled  in  the  first  instance  upon  the  occasion  of  his  arrest  or  co«ifinenient; 
but  as  the  service  of  charges  in  this  case  has  no  connection  with  the  trial,  a 
failure  in  respect  to  the  performance  of  the  duty  imposed  cannot  be  made 
the  subject  of  a  plea  in  abatement.'  The  accused  also  becomes  entitled  to 
be  informed  of  the  specific  charges  against  him  when  the  court  has  been 
appointed  for  his  trial,  and  the  time  of  his  arraignment  approaches.  In  this 
case  he  is  apprised  of  the  specific  offense  for  which  he  is  to  be  tried  by  a 
formal  service  of  the  charges  and  specifications  which  have  been  referred  to 
the  court  for  trial.  This  duty  is  performed  by  the  judge-advocate,  and  the 
accused  is  entitled  to  receive  a  copy  of  the  charges  and  specifications  a  suffi- 
cient time  in  advance  of  the  trial  to  enable  him  to  secure  the  necessary 
witnesses  and  make  proper  preparations  for  his  defense.  The  statutes  are 
silent  as  to  the  length  of  time  to  be  allowed  for  such  j^urpose,  and  it  can 
only  be  said  in  general  terms  that  it  must  be  reasonable  in  amount,  that  is, 
sufficient  to  enable  the  accused  to  secure  the  attendance  of  his  witnesses  and 
to  make  the  preparations  above  indicated.' 

Waiver  of  Objections. — A  failure,  at  the  arraignment,  to  take  notice  of 
a  variance  between  the  form  of  a  specification  to  which  the  accused  is  called 
xx'^OTi  to  plead  and  such  specification  as  it  appeared  in  the  copy  of  the  charges 
served  at  his  arrest  is  a  waiver  of  the  objection,  and  the  same  cannot  be 
taken  advantage  of  at  a  subsequent  stage  of  the  proceedings." 

Procedure  in  Respect  to  Pleas. — It  has  been  seen  that  a  ^;/ea  alleges 
matter  of  fact,  in  opposition  or  reply  to  a  particular  charge  or  specification 
which,  if  substantiated  (as  in  the  case  of  a  pardon  or  a  previous  conviction 
or  acquittal),  may  operate  to  cause  the  charge  or  specification  to  which  it  is 
addressed  to  be  stricken  out  or  materially  amended.  The  matter  relied 
upon  by  the  accused  in  support  of  the  plea  should,  therefore,  be  logically 
and  concisely  stated  in  his  plea,  which  should  in  general  be  submitted  in 
writing.  He  should  also  be  prepared  to  substantiate  the  allegations  of  the 
plea,  if  necessary,  by  documentary  evidence  or  by  the  testimony  of  witnesses. 
The  result  is  to  raise  an  issue  on  the  facts  as  set  forth  in  the  particular  plea. 
The  accused,  as  the  party  upon  whom  the  burden  of  proof  is  cast  by  the 
pleading,  is  entitled  to  be  first  heard  in  its  support,  and  in  an  important 
case  is  entitled  to  the  closing  address  in  reply  to  the  argument  or  statement 
of  the  judge-advocate.  After  the  accused  has  made  his  statement  or  sub- 
mitted his  testimony  in  support  of  the  allegations  contained  in  the  plea,  the 
judge-advocate  is  entitled  to  reply  and,  if  he  so  desires,  to  submit  testimony 

'  See.  in  the  chapter  entitled  Charges  and  Specifications,  the  article  relating  to 
the  service  of  charges  upon  the  accused. 

2  Dig.  .1.  A.  Gen.,  590,  par.  8  ;  591,  par.  10. 

»  Ibid.,  2?>1,  par  39.     See,  also,  U.  S.  vs.  Curtis,  4  Mason,  332. 

♦  Dig.  J.  A.  Gen.,  237,  par.  39. 


IIIE  IXCTDEyTS  OF   THE   'llilAL.  Ill 

in  rebuttal.  AVIien  botli  sides  have  been  fully  heard,  the  court  is  closed  for 
deliberation.  Tiie  judgment  of  the  court  after  such  deliberation  is,  if  for 
the  accused,  tluit  tlie  })lt':i  is  sustained,  and  the  charge  or  specification  to 
which  the  j)lea  was  addressed  is  stricken  out,  or  amended  in  accordance 
therewith;  if  for  the  judge-advocate,  the  judgment  is  that  the  plea  is  not 
sustained.  Tiie  accused  may  then  submit  any  other  special  pleas  for  which 
he  may  have  valid  ground,  or,  having  no  such  jjleas  to  submit,  he  pa.sses  at 
once  to  tlie  general  issue,  presently  to  be  explained. 

Statutes  of  Limitation. — Statutes  of  limitation  in  criminal  cases  are 
enactments  which,  if  pleaded  in  defense  by  a  person  accused  of  crime, 
operate  to  deprive  the  State  of  the  power  to  try  and  punish  an  oifender  after 
the  lapse  of  a  specific  period,  stated  in  the  statute,  since  the  offense  was  com- 
mitted. Statutes  of  limitation  are  enacted  to  secure  the  prompt  punishment 
of  criminal  offenses,  and  with  a  view  to  obtain  the  attendance  of  the  wit- 
nesses at  the  trial  while  the  recollection  of  the  event  is  still  fresh  in  their 
minds.  The  period  that  must  elapse  in  order  to  constitute  a  bar  to  a 
prosecution  varies  in  general  with  the  gravity  of  the  offense;  in  murder 
there  is  no  limitation,  and  a  jirosecution  may  be  instituted  at  any  time  dur- 
insr  the  life  of  the  offender.  As  there  is  no  common-law  limitation  as  to  the 
prosecution  of  criminal  offenses,  the  period  of  limitation  is  fixed  by  statute 
in  the  several  States,  and  by  suitable  enactments  of  Congress  in  respect  to 
the  criminal  practice  of  the  United  States.' 

Limitation  as  to  Military  Offenses  in  General. — The  period  of  time 
within  which  prosecutions  must  be  instituted  at  military  law  is  fixed  by  the 
103d  Article  of  War,  as  to  all  military  offenses  except  desertion  in  time  of 
peace,  at  two  years  prior  to  issue  of  the  order  for  such  trial,  unless  the 
offender  "  by  reason  of  having  absented  himself,  or  of  some  other  manifest 
impediment,  he  shall  not  have  been  amenable  to  justice  within  that  period." 
In  view  of  this  Article  it  is  the  duty  of  the  Government  to  prosecute  an 
offender  within  a  reasonable  time  after  the  commission  of  the  offense.' 

Limitation  in  Desertion. — Tiie  statute  of  limitations  in  desertion  "in 
time  of  peace  and  not  in  the  face  of  the  enemy  "  is  fixed  at  the  same  period, 
but  the  statute  in  such  case  does  not  begin  to  run  until  the  end  of  the  period 
for  which  said  person  was  mustered  into  the  service.     If  the  deserter  "  shall 

'  Anderson's  Law  Dictionary.  See,  also,  the  article  Statutes  of  Limitation  iu  the 
chapter  entitled  MiiiTAia'  Law,  etc. 

'■'  Did.  J.  A.  Gen.,  124,  i)!ir.  11.  A  mere  alleiration,  in  a  spccilication.  to  the  eflfect 
that  the  whereabouts  of  the  olTender  was  unknown  to  the  military  authorities  during  the 
interval  of  more  than  two  years  whicli  iiad  elapsed  since  the  ofTense  is  not  a  good 
averment  of  a  "manifest  impediment  "  in  the  sense  of  the  Article.      Ibid.,  123,  par.  6. 

The  liabilitj'  to  trial  after  discharge,  imposed  by  the  last  clause  of  Art.  60,  held 
subject  to  till'  limitation  prescribed  in  Art.  108.*  And  so  held  as  to  the  liabilit}-  to  trial 
after  the  expiration  of  the  term  of  enlistment  under  Article  48.     Jbid.,  124,  par.  9. 


•  13  Opin.  Att.-Gen.,  402;  15  ibid..  152:  IG  ibid.,  170.    See,  also,  In  re  Bird,  2  Sawyer,  33. 


112  MI  UTAH  Y  LAW. 

meanwhile  have  absented  himself  f  ron\  the  United  States,  the  period  of  such 
absence  shall  be  excluded  in  computing  tlie  period  of  the  limitation." 

Limitations,  When  Operative. — As  the  most  important  element  in  a 
statute  of  limitiitious  is  that  of  time,  it  is  essential  that  the  exact  date  upon 
which  the  statute  begins  to  run  should  be  known,  in  order  that  the  court 
mav  be  enabled  to  determine  whether  it  shall  operate  as  a  bar  to  the  prose- 
cution in  a  particular  case.  The  time  when  the  general  statute  begins  to 
run  is  thus  fixed,  as  to  the  103d  Article  of  War,  by  the  requirement  that,  to 
constitute  a  limitation,  more  than  two  years  must  have  elapsed  between  the 
commission  of  the  offense  and  the  reference  of  the  case  for  trial,  such  refer- 
ence in  most  cases  constituting  the  order  for  the  trial  of  the  case.'  A 
similar  date  is  fixed  in  the  Act  of  April  11,  1890,  by  the  provision  that  the 
period  of  two  years  is  to  be  reckoned  from  the  arraignment  of  the  accused  for 
the  offense  of  desertion  committed  "  in  time  of  peace  and  not  in  the  face  of 
an  enemy." 

Suspension  of  the  Statute. — The  mere  lapse  of  the  statutory  period  is  not 
alone  sufficient  to  constitute  a  valid  plea  in  bar  of  trial,  for  during  such 
period  conditions  may  have  existed  which  operated,  during  their  continu- 
ance, to  suspend  the  operation  of  the  statute.  The  conditions  which  will 
operate  to  suspend  such  operation  are  specified,  as  to  the  103d  Article, 
in  the  clause  giving  the  accused  the  benefit  of  the  statute  "  unless,  by 
reason  of  having  absented  himself,  or  of  some  other  manifest  impediment, 
he  shall  not  have  been  amenable  to  justice  within  that  period."  By 
the  absence  thus  referred  to  in  the  103d  Article  of  War  is  believed 
to  be  intended,  not  necessarily  an  absence  from  the  United  States,  but 
an  absence  by  reason  of  a  "  fleeing  from  justice,"  analogous  to  that 
specified  in  Sec.  1045,  Rev.  Sts.,  which  has  been  held  to  mean  leaving 
one's  home,  residence,  or  known  abode  within  the  district,  or  concealing 
one's  self  therein,  with  intent  to  avoid  detection  or  punishment  for  the 
offense   against   the    United    States.'      Thus  it  has  been  held   that   in   a 

1  103d  Article  of  War.  Where  the  court  is  constituted  for  the  trial  of  a  particular 
case  or  person,  the  date  of  tlie  convening  order  establishes  the  time  within  which  the 
statute  may  operate.  So  where  the  court  is  convened  for  "the  trial  of  A  B  and  such 
other  persons  as  may  properly  be  brought  before  it,"  the  date  of  the  order  fixes  the 
date  in  the  case  of  A  B  ;  the  date  in  subsequent  cases  being  determined,  as  above  stated, 
by  thcif  official  reference  for  trial. 

'  Diir.  J  A.  Gen.,  V?Jh  pur.  14  ;  U.  S.  vh.  O'Brien,  2  Dill.,  381  :  U.  S.  vn.  White,  5 
Craiuh  C  C  ,  38,  73;  Gould  &  Tucker,  Notes  on  Revised  Statutes,  349  ;  State  vs.  Howell, 
S9  Mo.  588.  See,  also.  Gen  Court-martial  Orders,  No.  20,  A.  G.  O.  1894.  A  court- 
nmiiiil  in  a  case  of  an  oll'euse  other  than  desertion  sustained  a  i)lea  of  the  statute  of 
limiiations  in  bar  of  trial  for  the  reason  that  tlie  judge-advocate  could  produce  no 
evidence  to  show  tliat  the  accused  was  not  within  the  territorial  jurisdiction  of  the 
Un;ted  States  duiing  his  absence.  Held  that  such  showing  was  not  necessary,  and  that 
it  \v:is  sufficient  that  the  absence  sliouhi  be  any  unauthorized  absence  from  tlie  military 
service  whereby  the  absentee  evades  niid  for  the  lime  escapes  trial.  This  construction 
of  the  term  "absented  himself"  in  the  Article  corresponds  to  that  i)lace(l  on  the  words 
"  fleeing  from  justice  "  as  used  in  the  statutes  of  the  U.  S.  to  designate  those  whom  the 
statutes  of  limitation  for  tlie  prosecution  of  crimes  do  not  protect.     Ibid.,  125,  par.  15. 


TlIK  IMlDhMS   OF   J  HE    lUIAL.  113 

caoe  other  than  desertion  it  wus  not  essential  for  the  prosecution  to  be  j)re- 
pared  to  prove  that  the  accused  had  been  beyond  tlie  territorial  jurisdiction 
of  the  United  States  in  order  to  save  tlie  case  from  tlie  operation  of  the 
limitation.' 

Statute  of  Limitations  in  Desertion. — The  Act  of  Aj»ril  1 1,  1800,  men- 
tions but  a  .singlecau.se,  "  absence  from  the  United  States,"  \vhi(,-]i  will  have 
the  effect,  during  its  continuance,  to  withdraw  the  case  from  tlie  o])eration 
of  the  statute.  In  time  of  war,  or  when  the  offense  of  desertion  has  been 
committed  "  in  tlie  face  of  an  enemy,"  the  limitation  in  the  Act  of  April 
1 1,  IS'.R),  is  superseded  by  ilie  general  limitation  whicii  is  contained  in  the 
1(>:5(1  Article  of  War. 

Statute  Applicable  to  General  Courts  Only. — The  prohibition  of  the 
Arti(;le  relates  only  to  prosecutions  before  general  courts-martial;  it  does  not 
apply  to  trials  by  inferior  courts.  Courts  of  inquiry  may  also  be  convened 
without  regard  to  the  period  which  has  elapsed  since  the  date  or  dates  of  the 
act  or  acts  to  be  investigated."  Nor  does  the  rule  of  limitation  apply  to  the 
hearing  of  complaints  by  regimental  courts  under  Art.  30.' 

Pleading. — The  limitation  is  properly  a  matter  of  defen.'<e  to  be  specially 
pleaded  and  proved.  By  pleading  the  general  issue  the  accused  is  assumed 
to  waive  the  right  to  plead  the  limitation  by  a  special  plea  in  bar.  But 
under  a  plea  of  not  guilty  the  limitation  may  be  taken  advantage  of  by 
evidence  showing  that  it  has  taken  ellect.*  The  plea  being  made,,  however 
'•  and  proved  by  the  record  or  otherwise,  it  will  devolve  upon  the  prosecu- 
tion to  rebut  it  by  evidence  of  such  absence,  or  otiier  impediment,  as  shall 
be  .sufficient  to  except  the  case  from  the  operation  of  the  limitation."  ' 

Demurrers. — Demurrers,  although  not  absolutely  unknown,  are  of  the 
rarest  occurrence  in  the  })ractice  of  courts-martial.  The  office  of  a  demurrer 
is  to  raise  an  issue  of  law,  as  distinguished  from  the  issue  of  fact  whicli  arises 
when  a  resort  is  had  to  any  of  tlie  special  pleas  already  discussed ;  and  the 
issue  of  law  so  raised  must  be  decided  by  the  court  before  the  trial  can  be 
further  proceeded  with.  The  defect  in  a  specification  to  which  a  demurrer 
is  addressed  must,  therefore,  be  one  of  substance,  that  is,  the  specification 

'  Die:.  .1.  A.  Gen..  125.  par.  14. 

*<)  Opiii.  Att.-Gen..  2:^9. 

^  Dig.  Opin.  J.  A.  Gen..  124.  par.  10. 

*  Ibid.,  par.  12;  In  re  Bosrait,  2  Sawyer,  297;  In  re  Wliile.  17  Fed.  Rep..  723;  In  re 
Davison,  21  ihid.,  618;  In  re  Ziniincrniaii,  80  ihiil.,  170;  G.  O.  22,  A.  G.  O. ,  1893. 
A  court  will  not  continn  a  plea  of  the  stauiie  of  limitations  "before  any  evidence  is 
beard,  on  tiie  gro>ind  that  the  statute  of  iiniitations  has  barred  tbe  action  ;  becau.';e  until 
the  facts  .shall  appear  on  tbe  trial  it  cannot  appear  that  tbe  defendent  was  not  deeiu"- 
from  ju.stice  and,  therefore,  not  entitled  to  the  benclit  of  the  limitation  of  time.  If  the 
accused  is  entitled  to  tbe  henelit  of  tlu;  statute,  he  may  have  it  upon  plea,  or  upon 
evidence  under  the  general  issue."  U.  S.  rs.  White.  5  Ciauch  C.  C,  38.  See,  also, 
U.  S.  vx.  Cook.  2  Green  Ciim.  Law  Hep.,  88  (17  Wall.,  l«8i,  and  note'on  tbe  siibject 
of  pleading  statutes  of  limitation.  i)p.  96-102;  U.  S.  vs.  Brown,  3  Low..  267;  Parsons 
vs.  Hunter.  2  Sum..  419;  U.  S.  vs.  Watkins,  3  Cr.  C.  C,  341;  U.  S.  vs.  Smith   4  Dhv    121 

'  Wintbrop,  336. 


114  MILITARY  LAW. 

must  be  defective  in  some  essential  respect  in  regard  to  the  definition  or 
description  of  the  particular  military  offense  which  is  alleged  to  have  been 
committed,  or  must  fail  to  set  forth  facts  sufficient  to  constitute  an  offense 
at  military  law.  In  most  cases  the  ground  of  objection  to  which  a  demurrer 
is  addressed  can  be  better  met  by  a  plea  to  the  jurisdiction  of  the  court,  or 
by  one  of  the  special  pleas  in  bar  which  have  already  been  described ;  and 
where  such  a  course  is  practicable,  the  court  will  in  general  require  the 
accused  to  resort  to  a  plea  in  preference  to  a  demurrer.' 

Judgment  on  Demurrer. — If  the  demurrer  be  sustained,  the  accused  is 
not  required  to  plead  to  the  particular  specification  to  which  the  demurrer 
has  been  addressed;  if,  on  the  other  hand,  the  demurrer  be  not  sustained, 
the  judgment  is  that  the  accused  answer  over,  that  is,  that  he  be  required 
to  plead  the  general  issue  of  guilty  or  not  guilty. 

Objections  to  the  charges  and'  specifications  on  account  of  matter  of 
substance — as  that  they  do  not  contain  the  necessary  allegations,  or  other- 
wise do  not  set  forth  facts  constituting  military  offenses — should  properly 
be  made  at  the  outset  of  the  proceedings  by  one  of  the  special  pleas  above 
described,  or  they  will  in  general  be  regarded  as  ivaived.'^ 

THE    GENERAL   ISSUE. 

Pleas  to  the  General  Issue. — When  the  several  pleas  already  described, 
or  such  of  them  as  have  application  to  the  particular  case,  have  been  sub- 
mitted in  behalf  of  the  accused,  and  have  been  decided  adversely  by  the 
court,  the  accused  is  called  upon  to  plead  to  the  general  issue^  as  distin- 
guished from  the  special  issues  raised  by  pleas  in  bar,  abatement,  and  the 
like;  that  is,  he  is  required  to  enter  a  plea  of  guilty  or  not  guilty  to  the 
entire  body  of  charges  and  specifications  on  which  he  is  arraigned,  or  to 
such  portions  of  them  as  have  not  been  disposed  of  by  the  pleas  already  sub- 
mitted in  his  behalf. 

Form  of  Arraignment. — As  the  charge  in  court-martial  practice  rests 
npon  and  is  supported  by  the  specifications,  the  pleas  are  taken,  first  to  the 
specifications  in  support  of  the  charge,  and  then  to  the  charge  to  which  they 
relate.  The  first  charge  and  its  specifications  having  been  disposed  of,  the 
second  charge  with  its  specifications  is  next  disposed  of  in  a  similar  manner, 


'  In  the  few  recent  instances  in  which  the  demurrer  has  been  restorted  to,  tlie  specific 
ground  of  objection  could  have  been  better  and  more  adeqtiately  presented  in  the  form 
of  a  plea  eiliier  to  the  jurisdiction  of  the  court  or  in  bar  of  a  particular  charge  or 
specification.  In  a  great  majority  of  cases,  therefore,  it  will  be  proper  for  tlie  judge- 
advocate,  after  having  ascertained  the  precise  ground  of  objection  to  which  the  demurrer 
is  addressed,  to  advise  the  court  to  decline  to  entertain  the  objection  in  the  form  of 
a  demurrer  and  to  direct  the  accused  to  state  his  objection  in  the  form  of  an 
appropriate  plea.  If,  as  is  sometimes  the  case,  the  ground  of  demuvrer  constitutes 
matter  of  defense  merely,  the  accused  should  be  advised  to  embody  the  same  in  his 
defense  by  submitting  oral  or  written  testimony  in  its  support. 

s  Dig.  J.  A.  Gen.,  591,  par.  9. 


THE  IX  CI  DENTS   OF  THE   TRIAL.  115 

followed  by  the  third,  fourth,  etc.,  until  all  have  been  covered  by  pleas  of 
guilty  or  not  guilty.  In  making  the  arraignment,  the  judge-advocate  reads  to 
the  accused,  both  standing,  the  first  charge  with  its  specifications.  He  then 
addresses  him  as  follows:  "You  have  heard  the  charge  and  specification  pre- 
ferred against  you;  how  say  you  to  the  first  specification,  guilty  or  not 
guilty?  "  The  accused  is  then  similarly  arraigned  upon  the  other  charges, 
if  any  such  there  be,  and  his  pleas  are  taken  and  entered  upon  the  record. 
It  is  a  fundamental  principle  of  pleading  that  a  plea  to  the  general  issue 
must  cover  every  part  of  the  charges  and  specifications.  It  is  not  necessary, 
however,  that  the  plea  should  be  the  same — not  guilty,  for  example — as  to 
an  entire  specification,  but  that  every  portion  of  it  should  be  covered  by  a 
plea  of  either  guilty  or  not  guilty.  Words  or  clauses  may  be  excepted  from 
the  major  plea  by  pleading  guilty  to  the  specification  "  except  of  the  words," 
etc.,  "  and  of  the  excepted  words  not  guilty." 

Plea  of  Guilty,  Effects. — If  the  accused  be  subject  by  statute  to  the 
Articles  of  War,  and  if  the  olfense  charged  be  a  violation  of  military  law, 
the  defendant  by  a  plea  of  "  guilty  "  submits  himself  to  the  jurisdiction  of 
the  court,  admitting  that  it  has  jurisdiction  over  both  person  and  offense.' 

Statements  Inconsistent  with  Plea. — It  not  unfrequently  happens  upon 
trials  of  enlisted  men  tliat  tlie  accused,  in  pleading  guilty,  will  proceed  to 
make  a  statement  (verbal  or  written)  to  the  court  which  is  in  fact  incon- 
sistent with  the  plea.  In  such  a  case  the  court  will  properly  counsel  the 
accused  to  plead  not  guilty,  and,  this  plea  being  entered,  will  proceed  to  a 
trial  and  investigation  of  the  merits,  the  judge-advocate  introducing  his 
proof  precisely  as  under  an  ordinary  plea  of  not  guilty.' 

"Withdrawal  of  Plea.  — A  court-martial  is  authorized  in  any  case,  in  its 
discretion,  to  permit  an  accused  to  withdraw  a  plea  of  not  guilty  and  substi- 
tute one  of  guilty,  and  vice  versa,  or  to  withdraw  either  of  these  general  pleas 
and  substitute  a  special  plea.  Where,  therefore,  the  accused  applies  to  be 
allowed  to  change  or  modify  his  plea,  the  court  should  in  general  consent, 
provided  that  the  application  is  made  in  good  faith  and  not  for  the  pur- 
pose of  delay,  and  that  to  grant  it  will  not  result  in  unreasonably  protract- 
ing the  investigation.' 

Introduction  of  Testimony  after  Plea  of  Guilty. — It  is  a  general  rule  of 
criminal  law  that   wdiere  the  accused  pleads  guilty  no   testimony  on  the 


'  Di?.  J.  A.  Gen  ,  592.  par.  11.  See.  al.so,  In  re  Davison,  21  Fed.  Rep..  618;  In  re 
Zimmerman,  '6(iibid.,  176;,  Vanderhej'din  vs.  Youug,  11  .Johns.,  160. 

'  Diij.  J.  A.  Gen.,  588.  i>ar.  3. 

'  Ihid.,  590.  par.  7.  Thus  in  a  case  where  the  accn.sed,  being  evidently  ignorant  of 
the  forms  of  hiw.  pleaded  guilty  to  an  arlilioially  worded  cliarge  and  specificaiion.  and 
immetliately  thereupon  made  a  verbal  statement  to  the  cnurl  of  tlie  paniculais  of  his 
conduct,  setting  forth  facts  quite  incongruous  with  his  plea,  and  no  evidence  whutever 
was  introduced  in  the  case,  held  that  tiie  statement,  ather  than  the  plea,  should  be  re- 
garded as  the  intelligent  act  of  the  accused,  and  that,  upon  considering  both  together, 
the  acctised  should  not  be  deemed  to  have  confessed  his  guilt  of  the  specitic  charge. 
Ibid.,  589,  par.  3. 


116  MILITARY  LAW. 

merits  is  to  be  introduced.  But,  in  military  trials,  the  court,  even  against 
the  objection  of  the  accused,  may,  in  its  discretion,  call  upon  the  judge- 
advocate  to  offer  evidence,  or  approve  of  his  doing  so,  in  a  case  where  such 
evidence  is  deemed  to  be  essential  to  the  due  administration  of  military  jus- 
tice.' An  accused  cannot  be  allowed,  by  pleading  guilty,  to  shut  out  testi- 
mony where  the  interests  of  the  service  require  its  introduction.  But  in  all 
cases  where  evidence  is  introduced  by  the  prosecution  after  a  plea  of  guilty, 
the  accused  should  of  course  be  afforded  an  opportunity  to  offer  rebutting 
evidence,  or  evidence  as  to  character,  should  he  desire  to  do  so."* 

While  it  cannot  properly  be  ordered  by  a  commander  that  courts-martial 
convened  by  him  shall  not  receive  pleas  of  guilty,  or  shall  take  evidence  on 
the  merits  notwithstanding  pleas  of  guilty  are  interposed  by  the  accused,  it 
is  yet  proper  and  in  general  desirable,  particularly  in  cases  of  enlisted  men, 
and  especially  where  the  specifications  do  not  fully  set  forth  the  facts  of  the 
case,  that  the  prosecution  should  be  instructed  or  advised  to  introduce,  with 
the  consent  of  the  court,  evidence  of  the  circumstances  of  the  offense,  where 
the  plea  is  guilty  equally  as  where  it  is  not  guilty.  This  for  the  reason  that 
the  court  may  be  better  enabled  correctly  to  appreciate  the  nature  of  the 
offense  committed  and  thus  to  estimate  the  measure  of  punishment  proper  to 
be  awarded;  and  further  that  the  reviewing  authority  maybe  better  enabled 
to  comprehend  the  entire  case,  and  to  determine  whether  the  sentence  shall 
be  approved  or  disapproved  (in  whole  or  in  part),  or  shall  be  mitigated  or 
(wholly  or  in  part)  remitted."  Where  indeed  the  sentence  is  not  dis- 
cretionary with  the  court,  the  former  reason  does  not  apply,  though  in  such 
case  the  evidence  may  be  desirable  as  the  basis  for  a  recommendation  by  the 
members.  But  where  the  sentence  is  mandatory  the  latter  reason  applies 
with  the  greater  force,  since  the  mandatory  punishments  under  the  Articles 
of  War  are  in  general  of  the  severest  quality,  and  the  reviewing  officer  in 
acting  upon  the  same  is  called  upon  to  exercise  an  especially  grave  discretion. 
In  capital  cases  particularly,  it  is  most  important  that  all  the  facts  of  the 


'  The  principle  that  in  cases  iu  whicli  the  plea  is  guilty  the  court  should  take  testi- 
mony where  necessary  to  the  comprehending  of  tlie  facts  and  the  doing  of  justice, 
lliough  appareiitlv  in  a  measure  lost  sight  of  at  a  hiter  period,  was  clearly  enimciated  la 
early^General  Orders  of  the  War  Department,  'i'lius  iu  G.  O.  23  of  1830,  Maj.-Geu. 
Macomb  (commanding  the  Army)  expresses  iiimself  as  follows:  "In  every  case  in 
whii'.h  a  prisoner  pleads  guilty  it  is  the  duly  of  the  court-martial,  notwithstanding,  to 
receive  and  to  report  in  its  proceedings  such  evidence  as  may  afford  a  full  knowledge  of 
tiie  circumstances  ;  it  being  essential  that  the  facts  and  i)articulars  should  be  known  to 
tliose  whose  duty  it  is  to  report  on  the  case,  or  who  have  discretion  in  (tarrying  the 
sentence  into  elTect."  And  see  G.  O.  31,  of  1833,  to  a  .similar  effect.  Dig.  J.  A.  Gen., 
.'j87,  par.  1,  note. 

'  Dig.  .J.  A.  Gen  ,  587,  par.  1. 

3  Ibid.,  ])&r.  2.  Where  the  accused  pleads  guilty,  and  the  specification  does  not  fully 
set  forth  the  particulars  of  the  offense,  the  court  is  authorized  to  call  U|)on  the  judge- 
advocate  to  introduce  testimony  sullicient  to  inform  itself,  as  well  as  the  reviewing 
officer,  as  to  the  extent  of  tlie  criminality  involved  in  the  offense  and  the  measure  of 
punishment  proper  to  be  imposed.     Ibid.,  316,  par.  9. 


THE  INCIDENTS   OF  THE   TRIAL.  117 

case — all  circumstances  of  extenuation  as  well  as  of  aggravation — should  be 
exhibited  in  evidence.' 

Wherever,  in  connection  with  the  plea  of  guilty,  a  statement  or  confes- 
sion, whether  verbal  or  writteti,  is  interposed  by  the  accused,  both  plea  and 
statement  should  be  considered  together  by  the  court;  and  if  it  is  to  be 
gathered  from  the  statement  that  evidence  exists  in  regard  to  the  alleged 
oifense  which  will  constitute  a  defense  to  the  charge  or  relieve  the  accused 
from  a  measure  of  culpability,  the  court  will  properly  call  upon  the  jud^e- 
advocate  to  obtain  and  introduce  such  evidence,  if  practicable.* 

'  Dig.  J.  A.  Gen.,  587,  par.  3.  In  practice  the  ab.seuce  of  evidence  to  illuslrute  tLe 
offense  has  been  found  peculiarly  emljanassing  in  cases  of  deserters.  In  a  niajoritv  of 
these  cases  iu  wliich  tlu;  plea  is  "  guilty"  iIk;  leconl  is  found  to  ccjnlain  no  icMlirnouy  what- 
ever ;  and  a  full  and  iiitcllii::oMt  c()ni[ircliLMision  of  the  nature  of  the  olleusc — whetiier 
desired  upon  the  original  review  of  the  proceedings  or  upon  a  subsequent  application  for 
rennssion  of  sentence — is  thus  in  many  instances  not  attainable.*     lOid.,  588,  par.  2. 

It  not  unfre.iuenlly  hapi)ens  upon  trials  of  enlistetl  men  that  the  accused,  iu  pleading 
guilty,  will  proceed  to  make  a  statement  (verbal  or  written)  to  the  court  which  is  in 
fact  incoiisistenl  with  tiie  plea.  Thus  in  a  case  wiierc  the  accused,  being  evidently 
ignorant  of  the  loruis  of  law,  pleadeti  guilty  to  an  artiticially  worded  charge  and  specifi- 
cation, and  immediately  thereupon  maile  a  verbal  statement  to  the  court  of  the  particu- 
lars of  his  conduct,  selliug  fortii  facts  quite  incongruous  with  his  pica,  and  no  evidence 
whatever  was  iuiroduced  iu  the  case,  held  that  tiie  statement,  rather  than  the  plea, 
should  be  regarded  as  the  intelligent  act  of  the  accused,  and  that.  ui)on  considering  both 
together,  the  accused  should  not  be  deemed  to  have  confessed  his  guilt  of  the  specihc 
charge.  In  such  a  case  the  court  will  properly  counsel  the  accused  to  plead  not  guilt v, 
and,  this  pica  being  entered,  will  proceed  to  a  trial  and  investigation  of  the  merits,  tlJe 
judge-advocate  introducing  his  proof  i)recisely  as  under  au  ordinary  plea  of  not  guilty. 
And  where,  with  a  pica  of  guilty,  there  was  oilered  by  the  accused  a  written  statement 
setting  forth  material  circumstances  of  extenuation,  and  the  court  without  taking  anv 
testimony  whatever,  or  apparently  regarding  the  statement,  proceeded  to  convictioii  and 
sentence,  advised — the  case  being  one  in  which  the  .sentence  had  been  parll}'  executed — 
that  this  action  constituted  a  reasonable  ground  for  a  remission  of  a  portion  of  the 
punishment.     Ibid  ,  par.  3. 

Statements  inconsistent  with  the  plea  have  not  rarely  been  made  in  cases  like  larceny, 
v?hcre  several  distinct  elements  are  required  to  constitute  a  crime  in  law.  For  example, 
a  soldier  will  plead  guilty  to  a  charge  of  larceny,  and  thereupon  make  a  .statement  dis- 
claiming the  peculiar  intent  {auimns  furandi)  xxGce&^nxY  to  the  olTen.se,  thus  rcaliy 
admitting  onlv  an  imauthorized  taking.  In  such  cases  the  court  will  jiroperly  instruct  the 
accu.sed  that  he  sliould  change  his  plea  to  not  guilty,  and  if  he  declines  to  do  so  will 
propeily  call  upon  the  judge  advocate  to  introduce  evidence  .showing  the  actual  oifense 
committed.     Ibid.,  .')9ii,  par.  6. 

*  Diir  •!.  A.  (ien.,  .")81t,  i)ar.  4.  It  h:is  not  unfrc(|uently  hapivned  that  enlisted  men 
charged  with  desertion  have,  in  connection  with  a  plea  of  guilty,  made  a  st;Uement 
di.sclaiming  havin<:  had,  in  ab.senting  themselves,  any  intention  of  abandoning  the  ser- 
.vice,  and  stating  facts  which,  if  true,  constitute  absence  without  leave  only.  In  such  a 
case  the  accused  cannot  in  general  fairly  be  convicted  of  desertion  in  the  absence  of  an 
investigation,  and  the  court  will  properly,  therefore,  indvice  him  to  change  his  plea  to 
not  guilty,  or  direct  this  plea  to  be  entered  and  take  such  evidence  as  may  be  attainable 
to  show  what  offense  was  actually  committed.!     Jbtd.,  par.  5.    See,  also,  note  to  par  ante. 

*  See  views  of  the  .JiiclKe-.\.lvocafe  General,  relating  to  tlie  subject  of  this  paragrapli,  published 
in  G.  C.  M.  O.  69.  Hdqrs.  of  Army.  1S77. 

t  The  vii'ws  of  tlie  ,rui1(re-.\clvoc(it,e  General  as  presented  aliove  have  been  adopted  in  ttie  General 
Orders  of  the  War  Department  and  in  numerous  orders  of  ttie  various  military  department,  ftc.  coni- 
uiands.  In  G.  C.  M.  ()  ■,',  War-  Deiit..  IS?-,',  tlie  Secretary  of  War  ol)serves,  in  regard  to  two  cases  of  sol- 
diers, as  follows:  •'  The  \\  riiien  st.itements  sulnnitted  i>y  the  aecnsed  are  contradietory  of  their  pleas 
of  '  Kii'tty.'  The  court,  sliould  have  re<jar(leil  these  statements  as  neutralizing  the  efTeet  of  their  pleas, 
and  should  have  had  the  accused  instructed  as  to  their  lejral  lirlits.  and  advised  to  olianire  their  pleas 
with  a  view  to  the  hearini;  of  testimony.  It  not  unficquently  hai>V)eus  that  soldiers  do  not  understand 
the  letral  difference  between  absence  without  leave  and  desertion,  or  are  wholly  unable  to  discriminate 
as  to  the  (Trade  of  their  offenses,  as  determfned  bv  their  motives.  They  thus  sometimes  ignorantly 
plead  fjuilty  and  are  sentenced  for  crimes  of  which  thev  mav  be  actuallv  innocent.  The  proceedings, 
findings,  and  sentences  are  di-sajiproved."     And  see  G.  C.  M.'O.  :h.  War  Dept..  1870. 


lis  MILITARY  LAW. 

Standing  Mute. — The  SOtli  Article  of  War  provides  that  "  when  a 
prisoner,  arraigned  before  a  general  court-martial,  from  obstinacy  and  delib- 
erate design  stands  mute  or  answers  foreign  to  the  purpose,  the  court  may 
proceed  to  trial  and  Judgment  as  if  the  prisoner  had  pleaded  not  guilty." 
In  the  early  history  of  criminal  trials  in  England  there  was  a  doubt  as  to 
whether  a  person  could  be  convicted  of  felony  and  punished  capitally  who 
had  not  entered  a  formal  plea  of  guilty  or  not  guilty  to  an  indictment  for  a 
crime  amounting  to  felony  at  common  law.  This  doubt  was  removed  by 
statute  in  England  in  1772,'  and  the  practice  of  courts-martial  in  this  respect 
was  made  to  conform  to  that  of  the  criminal  courts  by  the  insertion  of  an 
appropriate  provision  in  the  Articles  of  War.  The  provision  so  inserted 
was  embodied,  substantially  in  its  present  form,  in  the  American  Articles  of 

t  tb. 
It  will  be  observed,  however,  that  the  89th  Article  prescribes  a  form  of 
procedure  wiiere  tlie  prisoner  "  from  obstinacy  and  deliberate  design  stands 
mute  or  answers  foreign  to  the  purpose."  Where  the  failure  to  plead  results 
from  a  visitation  of  God,'  that  is,  from  a  cause  beyond  the  control  of  the 
prisoner,'  the  fact  is  brought  to  the  attention  of  the  court  by  the  interposi- 
tion of  a  suitable  plea  in  bar  of  trial,  the  procedure  under  which  will  develop 
the  precise  nature  and  extent  of  the  inability  to  plead,  which  is  alleged  in 
behalf  of  the  accused,  and  will  enable  the  court  to  apply  an  adequate  and 
appropriate  remedy." 

Nolle  Prosequi. — The  court  having  been  organized  and  sworn,  and  the 
accused  having  been  arraigned  and  his  pleas  to  the  several  charges  and 
specifications  having  been  entered,  the  court  is  fully  in  possession  of  the  case, 
and  the  accused  is  in  general  entitled  to  have  the  trial  carried  forward  to  a 
conviction  or  acquittal.  "  A  prosecution  before  a  court-martial,  however, 
proceeds  in  the  name  and  by  the  authority  of  the  Government.  TMie  United 
States,  therefore,  through  the  Secretary  of  War  or  the  military  commander 
who  has  convened  the  court,  may  require  or  authorize  the  judge-advocate  to 
enter  a  nolle  prosequi  in  a  case  on  trial  (or,  less  technically,  withdraw  or  dis- 
continue the  prosecution),  either  as  to  all  the  charges,  where  there  are  several, 
or  as  to  any  particular  charge  or  specification.  But  the  judge-advocate  can- 
not exercise  this  authority  at  his  own  discretion,  nor  can  the  court  direct 
it  to  be  exercised."  ^ 


•  13  Geo.  III.,  ch.  20. 
'2  Hale,  PI.  Cr.,  317. 

*  For  a  case  in  poiut.  see  Adye,  132,  note.  ...    -„^.    ,  „^„ 

4  Macomb,  S  64;  O'Brien,  247;  DeHart,  136  Benet,  107;  Ives,  111;  Wintbrop,  326; 
Houffh,  754;  Simmons.  §  552. 

5  Di<r.  ,J.  A.  Gen..  536  ;  see,  also,  Digest.  315,  par.  7;  ibid.,  458,  par.  10. 

In  the  British  service  it  is  held  that  the  crown  and  the  convening  authority  may 
enter  a  nolle  proserjui  at  any  stage  of  the  i)roceedings.  This  power  is  deduced  from 
the  undisputed  power  of  the  crown  to  enter  a  nolle  prosequi  at  any  time  in  a  crimi- 
nal case.     Clode,  Mil.  Law,  125  ;  Regina  vs.  Allen,  1  B.  &  S.,  855. 


THE  INCIDENTS  OF  THE  TRIAL.  119 

THE   HEARING. 
THE    PROSECUTION. 

Testimony  for  the  Prosecution. — The  arraignment  having  been  completed, 
the  trial  proper  begins  with  the  introduction  of  the  testimony  in  behalf  of 
the  United  States.  The  jndge-advocate,  as  the  prosecutor  in  behalf  of  the 
Government,  may  open  the  prosecution  with  a  statement  of  the  case  against 
the  accused  which  he  proposes  to  establish  by  the  testimony  of  witnesses. 
Unless  the  case  presents  some  unusual  complications,  however,  or  unless  it 
may  become  necessary  to  rely  largely  upon  circumstantial  evidence  in  support 
of  the  case  for  the  prosecution,  the  judge-advocate  rarely  avails  himself  of 
this  privilege  in  practice,  but  relies  upon  the  charges  themselves  to  convey 
to  the  court  an  outline  of  the  case  which  he  proposes  to  establish.' 

Introduction  of  "Witnesses. — T'he  first  witness  for  the  prosecution  is  then 
called  and  duly  sworn  by  the  judge-advocate.  AVhile  taking  the  oath  the 
Avitness  stands,  his  ungloved  right  hand  raised.  The  judge-advocate,  also 
standing,  then  administers  the  oath  to  the  witness  by  repeating  it  in   the 

following   form:    "  low,  A B ,    do   stvear,    (or   affirm),  that  the 

evidence  you  shall  give,  in  the  case  noiv  in  hearing,  shall  be  the  truth,  the 
jvhole  truth,  and  nothing  but  the  truth.  So  help  you  God.''''  When  the 
prescribed  form  of  oath  has  been  administered  by  the  judge-advocate,  the 
witness  signifies  his  acceptance  of  the  obligation  by  saying  "  I  do,"  or  by 
adding  thereto  the  concluding  words  of  the  oath  itself,  "  I  do,  so  help  me 
God."  In  the  administration  of  the  oath,  any  form  which  the  witness 
regards  as  of  peculiar  binding  force  may  be  administered  in  addition  to  that 
required  by  law;  but  the  oath  or  affirmation  prescribed  in  the  92d  Article 
of  War,  being  a  statutory  requirement,  must  be  administered  in  every  case.' 
A  witness  who  has  once  been  sworn  in  a  particular  case  and  has  testified, 
is  not  required  to  be  resworn  on  being  subsequently  recalled  to  the  stand 
by  either  party.' 

'  Ives,  129  ;  Wiuthrop,  397.  The  judge-advocate  in  his  character  as  prosecutor 
cannot  be  interfered  with.  Ives,  233.  In  the  Stanley-Hazen  court-martial  the  court 
refused  to  direct  the  judge-advocate  to  proceed  witli'  the  trial  of  General  Hazen,  as 
requested  by  General  Stanley.  The  judge-advocate  claimed  the  right  to  brin<r  for- 
ward his  cases  in  the  order  which  he  saw  tit.  The  court  declined  to  interfere.'Such 
interference,  indeed,  would  have  been  (luite  beyond  its  power.  Other  than  the  judge- 
advocate,  who  by  the  90th  Article  of  War  is  "required  to  prosecute  in  the  name  of 
the  United  States,''  our  military  law  and  practice  recognize  no  official  prosecutor. 
The  party  who  is  in  fact  the  accuser  or  the  i>rosecuting,  witness  is,  in  important 
cases,  not  un frequently  permitted  by  the  coiirt  to  remain  in  the  court  room  and  advise 
with  the  judge-advocate  during  the"  trial,  if  the  latter  requests  it  ;  and  in  some  cases 
he  has  been  allowed  to  be  accompanied  by  his  own  counsel.  If  such  a  party  is  to 
testify,  he  should  ordinarily  be  the  first  witness  examined  ;  this  course,  however,  is 
not  invariable.     Dig.  J.  A.  Gen.,  619.     See,  also,  458,  ibid.,  par.  11. 

•The  Article  does  not  prescribe  by  whom  the  oath  shall  be  administered.  By  the 
custom  of  the  service  it  is  administered  by  the  judge-advocate.  When  the  judge- 
advocate  himself  takes  the  witness-stand,  heis  properly  sworn  by  the  president  of  the 
court.     Ibid.,  107,  par.  2. 

'  This  Article  prescribes  a  single,  specific  form  of  oath  to  be  taken  by  all  witnesses. 


120  MILITARY   LAW. 

Objections  to  Competency. — If  there  are  objections  to  the  competency  of 
the  witness,  they  are  raised  before  the  oath  lias  been  administered.  If  the 
cause  of  incompetency  be  known  to  exist,  the  party  objecting  must  raise  the 
objection  at  this  time  or  it  will  be  deemed  to  have  been  waived.'  Until  they 
are  called  upon  to  testify,  none  of  the  witnesses  are  permitted  to  appear  in 
court,  or  to  listen  to  the  testimony  of  others,  save  in  the  case  of  an  expert, 
whose  testimony,  being  in  the  nature  of  an  opinion,  is,  or  may  be,  based 
upon  that  of  other  witnesses.  While  waiting  to  give  their  testimony  the 
witnesses  are  separated,  if  need  be ;  when  the  occasion  is  such  as  to  make 
that  course  necessary,  suitable  precautions  may  be  taken  to  prevent  their 
communicating  with  each  other  during  the  trial  of  the  case." 

Method  of  Examination. — After  having  been  identified  and  sworn,  the 
witness  is  first  examined  by  the  judge-advocate.  "  The  first  question  put  to 
him  will  ordinarily  be  for  the  purpose  of  determining  his  identification  of 
the  accused;  the  second,  when  practicable,  should  be  in  such  form  that  the 
answer  may  show  that  the  witness  was  so  placed  as  to  personally  know  some- 
thing about  the  matter  set  forth  in  the  specifications;  while  the  third  and 
subsequent  interrogatories  should  be  such  as  to  elicit  all  the  facts,  whether 
thev  consist  of  words  or  actions,  that  may  have  come  within  the  witness's 
personal  knowledge."'  AVhen  the  direct  examination  has  been  concluded 
the  fact  is  announced  by  the  judge-advocate,  and  an  opportunity  is  given 
the  accused  to  cross-examine  the  witness.'  After  the  cross-examination  has 
been  completed  the  witness  maybe  re-examined  by  the  judge-advocate,  after 
which  he  may  be  re-examined  by  the  accused.  If  the  accused  desires  to 
examine  the  witness  in  respect  to  matters  not  developed  during  the  examina- 


The  Constitvition,  however.  (Article  I  of  Amendments  )  has  provided  that  Congress  shall 
make  no  law  prohibiting  the  free  exercise  of  religion.  Where,  therefore,  the  pre- 
•^cribed  form  is  not  in  accordance  with  the  religious  tenets  of  a  witness,  he  should  be 
permitted  to  be  sworn  according  to  the  ceremonies  of  his  own  faith  or  as  he  may 
deem  binding  on  his  conscience.  Dig.  J.  A.  Gen..  107.  par.  1.  The  reswearing  of  a 
witness  will  not  affect  the  validity  of  the  proceedings.     Ibid.,  108,  par.  3. 

'  See  the  title  Competency  of  Witnesses  in  the  chapter  entitled  Evidence. 

2  Witnesses  should  not  in  general  be  admitted  to  the  court-room,  but  should  be 
kept  as  far  as  practicable  apart  until  required  to  appear  and  give  their  testimony.  But 
that  a  witness  or  witnesses  may  have  been  permitted  to  remain  in  the  court-room  and 
hear  the  testimony  of  witnesses  previously  called  cannot  aifecl  the  legality  of  the  pro- 
ceedings.    Dig.  J.  A.  Gen,.  75B.  par.  15 

Before  the  examination  of  any  particular  witness  is  begun  it  is  customary  for  the 
ro\irt  to  require  the  others  to  retire  If  a  witness  remains  in  court  after  such  a  request, 
bv  a  mistake  or  otherwise,  the  court  will  decide  whether  or  not  lie  shall  be  examined  ; 
bin  whether  or  not  it  is  essential  to  the  discovery  of  truth  that  the  witnesses  shall 
be  thus  examined  out  of  hearing  of  each  other  is  a  matter  within  the  discretion  of  the 
court.*     M-iiiual  for  Courts-martial,  41. 

'  Manual  for  Cotirts-martiMl,  41. 

«  Macomb  Sg  77-80;  OBrien,  251-257;  DeHart,  150-161;  Benet.  125;  Ives,  1.31; 
Winthrop  399-406;  Tvtler.  161  :  Simmons,  ^fc^  569-587  ;  Clode.  Mil.  Law,  27  :  Man. 
Mil   Law,'606,  607;  Man.  for  Courts-martial,  41-45;   Harwood ,  98-106  ;  Adye,  175. 


*  1    Greenleaf,  §  431. 


TIIK  IXCl DENTS   OF   THE  TRIAL.  121 

tion  in  chief,  his  proper  course  is  to  summon  the  witness  to  testify  in  his 
behiilf  at  u  later  stage  of  the  trial.  If  his  questions  be  few  in  number, 
however,  they  may,  with  the  consent  of  the  court,  be  put  while  the  witness 
is  on  the  stand.'  After  the  judge-advocate  and  the  accused  have  completed 
their  e.xamination  of  u  particular  witness,  an  opportunity  is  afforded  to  the 
members  of  the  court  to  j)ropound  questions.  In  strictness,  the  court  may 
])ut  questions  at  any  time;  they  are  properly  put,  however,  after  the  witness 
has  been  regularly  examined  by  the  parties.' 

Reducing  Questions  to  Writing.— Questions  are  reduced  to  writing  by 
the  party  with  whom  they  originate,  and  are  put  by  the  judge-advocate,  who 
records  the  answers,  as  they  are  made,  in  the  exact  words  of  the  witness. 
Arguments,  motions,  pleatlings,  and  other  matters  of  like  character  arising 
in  the  course  of  the  trial,  are  similarly  reduced  to  writing.  In  cases  in 
which  a  stenographer  is  employed  to  take  down  the  testimony,  the  questions 
are  put  and  answered  viva  voce,  as  in  ordinary  civil  procedure. 

Reading  over  Testimony  to  Witness. — The  examination  of  the  witness 
having  been  concluded,  iiis  testimony,  or  a  portion  of  it,  may  be  read  over 
to  him  with  a  view  to  the  correction  of  inaccuracies,  if  he  request  it,  or  if 
the  court,  for  some  special  reason,  considers  such  reading  necessary."  lie  is 
then  permitted  to  retire.  Should  he  be  recalled  to  testify  at  a  subsequent 
stage  of  tiie  trial,  it  is  not  necessary  to  re-administer  the  oath ;  it  is  sufficient 
to  call  his  attention  to  the  fact  that  he  has  already  been  sworn  and  that  the 
binding  force  of  the  oatli  remains  unimpaired.* 

Leading  Questions. — In  the  examination  in  chief,  what  are  called  leadino' 
questions,  that  is,  questions  which  suggest  the  answers  which  it  is  desired 
that  the  witness  shall  make,  or  which,  embodying  a  material  fact,  are  sus- 
ceptible of  being  answered  by  a  simple  Yes  or  No,  if  objected  to  by  the  op- 
})osite  party  are  rejected  by  the  court.  This  rule,  however,  is  to  be  under- 
stood in  a  reasonable  sense,  for  otherwise  the  examinations  might  be  most 
inconveniently  protracted.  To  abridge  the  proceedings,  the  witness  may  be 
led  at  once  to  points  on  which  he  is  to  testify  and  the  acknowledged  facts 


'  Wintlirop,  401  ;  Tv.s.  13:^  ;   DeHart.  159. 

'  '■  Tlif  maimer  in  which  witnesses  are  to  be  examined  lies  cliieliy  within  the  discretion 
<if  llie  court.  Tlie  great  ()l)jeci  is  to  elicit  tiie  truth  from  the  witness  ;  but  tlie  ciiaracter, 
inteliitrence.  moral  courage,  bias,  memory,  etc.,  of  witnesses  are  so  varied  as  to  require 
an  almost  equal  variety  in  the  manner  of  interrogation  necessary  to  attain  that  end."* 
Manual  for  Courts-martial,  41,  par.  2. 

*  The  reading  of  previous  proceedings  and  of  testimony  for  approval  will  be  dis- 
peii.«ed  with,  unless,  for  special  reason  such  reading  be  considered  neces.«ary  bv  the  court, 
or  unless  a  witness  desires  to  iiave  certain  part  of  his  testimony  read  over  for  correction! 
Circular  No.  27,  A.  G.  O.,  1897.  A  witness  who  has  given  his  testimony  should  in 
general  be  allowed  to  modify  the  same  where  he  desires  to  do  so  in  a  material  particular. 
BiU  where  the  court  has  refused  to  permit  a  witness  to  correct  his  statement  .as  recorded. 
su(>Ji  refusal  need  not  induce  a  disapproval  of  the  proceedings  unless  it  appear  that  the 
rights  of  the  accused  have  thus  been  prejudiced.     Dig.  Opin.  J.  A.  Gen     753   par   14 

*  A  Ibid.,  108,  par.  3. 

*  1  Greenleaf,  §  «1. 


122  MILITARY  LAW. 

in  the  case  already  established  may  be  recapitulated  to  him.  The  rule  is, 
therefore,  not  applicable  to  that  part  of  the  examination  which  is  merely 
introductory.' 

In  certain  cases,  however,  leading  questions  may  be  put.  They  are  per- 
mitted during  the  cross-examination  and,  tluring  the  direct  examination,  as 
has  been  seen,  in  respect  to  matters  introductory  to  the  material  part  of  the 
inquiry ;  or  when  the  witness  appears  to  be  hostile  to  tlie  party  calling  him ;  or 
is  reluctant  or  unwilling  to  testify,  or,  from  evident  want  of  recollection,  which 
a  suggestion  may  assist,  makes  an  omission  in  his  testimony;  and  in  cases 
Avhere  the  mind  of  the  witness  cannot  be  directed  to  the  subject  of  inquiry 
Avithout  particularization.  The  question  wiiether  a  particular  question  is  or 
is  not  leading,  and  if  so  whether  it  can  be  put,  is  a  matter  to  be  determined 
by  the  court  in  every  instance.^ 

Objections  to  Testimony. — A  question  having  been  put  by  either  party^ 
the  other  party  to  the  proceedings,  or  even  a  member  of  the  court,  may 
object  to  its  being  answered  upon  the  ground  that  it  is  leading  or  irrelevant, 
or  that  the  answer  called  for  is  hearsay,  or  in  the  nature  of  opinion,  or 
otherwise  properly  subject  to  objection  in  accordance  with  some  established 
rule  of  evidence.^  The  nature  of  the  objection  must  be  stated  in  every  case, 
as  that  the  question  is  leading,  irrelevant,  or  the  like;  and  the  party  object- 
ing may,  if  necessary,  submit  argument  in  its  support,  to  which  the  partj 
proposing  the  question  is  entitled  to  reply.  If  the  reason  for  the  objection 
be  at  once  apparent,  or  when  both  sides  have  been  heard  as  to  its  admissi- 
bility, the  court  is  cleared  and  closed  and  the  court  determines,  by  a 
majority  of  votes,  whether  the  question  shall  be  put." 

Questions  by  Court. — Questions  by  the  court,  that  is,  questions  which 
have  been  agreed  to,  or  determined  on,  by  the  court  in  its  collective  capacity, 
are,  of  course,  not  subject  to  objection.  Questions  by  a  member  or  by  a 
party,  however,  may  be  objected  to  by  another  member  or  by  the  opposite 
party;  if  objected  to,  and  if  the  objection  be  sustained,  sncli  a  question  is 
recorded  as  a  "question  by  a  member"  and  not  as  a  "question  by  the 

1  Manual  for  Courts-martial,  41;  1  Greenleaf,  §  434. 

5  1  Greenleaf  on  Evidence,  §§  434,  4^5;  1  Wharton,  Evid.,  §§  449-504;  1  Starkie. 
149,  loO  ;  U.  S.  vs.  Angell,  11  Fed.  Rep.,  35,  39.  In  commencing  the  examination  of  9- 
witness,  it  is  a  leading  of  the  witness,  and  ohjeclionable,  to  read  to  him  the  cliarge  anu 
specification  or  specitications,  since  he  is  thus  instructed  as  to  the  particulars  in  regard 
to  which  lie  is  to  testify  and  which  he  is  expected  to  substantiate.*  So  to  read  or  state 
to  him  in  substance  the  charge,  and  ask  him  '  what  he  knows  about  it,'  or  in  terms  to 
that  effect,  is  loose  and  objectionable  as  encouraging  irrelevant  and  hearsay  testimony. 
The  witness  should  simply  be  asked  to  state  what  was  said  and  done  on  the  occasion,  etc. 
A  witness  should  ])roperly  also  be  examined  on  specific  interrogatories,  and  not  be  called 
upon  to  make  a  general  statement  in  answer  to  a  single  general  question. f  Dig.  J.  A. 
Gen.,  394,  par.  o. 

'  See,  post,  the  chapter  entitled  Evidence. 

*  Macomb,  p  78;  DeHart,  155;  Benet,  128;  Ives,  131  ;  Winthrop,  404  ;  Harwood,  99. 

*  Compare  G.  O.  12.  Dept.  of  the  Missouri,  1862;  do.  36,  id.,  186.3;  do.  29,  Dept.  of  California,  1865; 
do.  67.  Dept.  of  the  South.  1874. 

t  See  G.  C.  M.  O.,  14,  24,  Dept.  of  Dakota,  1877. 


THE  INCIDENTS   OF  THE  TRIAL.  1^3 

court"  in  the  ordinary  form.  For  tliis  reason  questions  by  members  are 
submitted  informally  to  each  member  in  turn,  and  if  approved  they  become 
questions  by  the  court  and,  as  such,  are  not  open  to  objection.' 

Conduct  of  the  Prosecution. — A  competent  judge-advocate  will  properly 
be  left  by  ihe  court  to  introduce  the  testimony  in  the  form  and  order  deemed 
bv  him  to  be  the  most  advantageous  and,  generally,  to  bring  on  cases  for 
trial  and  conduct  their  prosection  according  to  his  own  judgment.'  His 
duty  in  this  respect,  however,  will  depend  upon  the  rank  of  the  accused, 
the  offense  with  which  he  is  charged,  his  ignorance  or  want  of  intelligence, 
and,  to  some  extent,  upon  the  fact  that  he  is  or  is  not  defended  by  counsel.' 

Tb.e  duty  of  the  judge-advocate  toward  the  accused  should  not  be 
ref^arded  as  confined  to  the  limited  province  of  counsel  for  the  prisoner  as 
the  same  is  indicated  in  the  9()th  Article  of  War.  Where  the  accused  is 
ignorant  and  inexperienced  and  without  counsel — es})eciully  where  he  is  an 
enlisted  man — the  judge-advocate  should  take  care  that  he  does  not  suffer, 
upon  the  trial,  from  any  ignorance  or  misconception  of  his  legal  rights,  and 
has  full  opportunity  to  interpose  such  pleas  and  make  such  defense  as  may 
best  bring  out  the  facts,  the  merits,  or  the  extenuating  circumstances  of  his 

case.* 

The  judge-advocate  should  therefore  advise  the  accused,  especially  when 
ignmant  and  unassisted  by  counsel,  of  his  rights  in  defense — particularly  of 
liis  right,  if  it  exists  in  the  case,  to  plead  the  statute  of  limitations,  and  of 
his  right  to  testify  in  his  own  behalf.  A  failure  to  do  so,  however,  will  not 
affect  the  legal  validity  of  the  proceedings;  though  if  it  appear  that  the 
accused  was  actually  ignorant  of  these  rights,  the  omission  may  be  ground 
for  a  mitigation  of  sentence.* 

Prosecutor. — Our  military  law  and  practice  recognize  no  official  prose- 
cutor other  than  the  judge-advocate,  who  by  the  90th  Article  of  War  is 
"  required  to  prosecute  in  the  name  of  the  United  States."  The  party  who 
is  in  fact  the  accuser  or  the  prosecuting  witness  is,  in  important  cases,  not 
unfrequently  permitted  by  the  court  to  remain  in  the  court-room  and  advise 


'  Simmous,  §  595;  Dellart,  156;  Wiuthrop.  404.  .c-.-,     , 

2  Die:.  J.  A.  Gen..  458,  par.  11.  Compare  G.  C.  M.  O.  97,  Dept.  of  Dakota.  18. ^:  do. 
,S8  Dept.  of  Texas.  1878;  and,  as  to  tlie  civil  i)ractice,  United  States  vs.  Burr,  1  Burr's 
Trial    «")   469;  Lynch  vs.  Benton,  3  Rob..  105;  Davany  rs.  Koon,  45  Miss     71. 

"  Macomb  §ii  74-97;  O'Brien,  282;  Dellart.  112;  Benet,  124-i;J4;  Ives,  124;  Winlbrop, 
394  ;  Simmons', 't5  550;  Clode.  Mil.  Law,  104;  Man.  Mil.  Law,  54;  Man.  for  Courts-mar- 
tial,'20.  '  ,  ,    ,  J       , 

*  Di"-.  J.  A.  Gen..  458,  par.  12.  For  the  jutlge-advocate  to  counsel  the  accused,  when 
a  soldiei-or  inferior  in  rank,  to  plead  ijuilty  must  in  general  be  unbelittini:  and  inad- 
visable But  where  such  plea  is  voluntarily  and  intellisrently  made,  the  judire-advocate 
should  properly  advi-se  the  accused  of  his  risjlit  to  offer  evidence  in  explanation  or 
extenuation  of  his  offense,  and  if  any  such  evidence  exists  should  assist  him  in  securing 
it  And  where  no  such  evidence  is  attainable  in  the  case,  the  judge-advocate  should 
still  see  that  the  accused  has  an  opportunity  to  present  a  "statement,"  written  or  verbal. 
to  the  court,  if  he  has  any  desire  to  do  so.     Ibid.,  par.  13. 

s  Ibid..  462,  par.  28. 


124  MILITARY  LAW. 

with  the  judge-advocate  during  the  trial,  if  the  latter  requests  it;  anu  in 
some  cases  he  has  been  allowed  to  be  accompanied  by  his  own  counsel.  If 
such  a  party  is  to  testify,  he  should  ordinarily  be  the  first  witness  examined; 
this  course,  however,  is  not  invariable.' 

Close  of  the  Case  for  the  Prosecution.— When  all  the  witnesses  for  the 
prosecution  have  been  called  and  examined  and  such  documentary  evidence 
as  the  judge-advocate  may  desire  to  introduce  has  been  submitted  to  the 
court,  the  judge-advocate  announces  that  "the  prosecution  here  rests." 
This  to  enable  the  accused  to  know  when  the  case  of  the  prosecution  is  com- 
plete and  the  testimony  in  support  thereof  fully  before  the  court. 

THE   DEFENSE. 

DEFENSES. 

Nature  and  Character. — The  matter  offered  by  an  accused  in  opposition 
to  or  in  rebuttal  of  the  case  established  by  the  prosecution  is  called  the 
defense.  Defenses  vary  considerably  in  point  of  sufficiency  or  legal  validity; 
some  being  a  complete  answer  to  the  charges,  and  others  operating  merely 
to  reduce  the  degree  of  criminality,  or  to  diminish  the  gravity  of  the  offense 
which  is  shown  to  have  been  committed.  Where  the  testimony  submitted 
in  behalf  of  an  accused  is  sufficiently  strong  to  absolutely  negative  the  alle- 
o-ations  of  the  charges  and  specifications  the  defense  is  said  to  be  complete; 
as  where  absolute  want  of  criminal  capacity  is  established  in  respect  to  the 
accused,  or  where  an  act  charged  was  done  in  obedience  to  the  lawful  orders 
of  a  military  superior,  etc.  A  complete  defense,  however,  is  not  always 
necessary.  It  has  been  seen  that,  in  order  to  warrant  a  conviction,  the 
court  must  be  convinced  of  the  guilt  of  the  accused  beyond  a  reasonable 
doubt;  where,  therefore,  the  testimony  submitted  by  the  prosecution  in  sup- 
port of  a  particular  cliarge  falls  short  of  this  standard  the  accused  is  entitled. 
to  an  acquittal  as  to  such  charge  or  specification;  and  the  matter  thus  sub- 
mitted in  behalf  of  the  accused  is  said  to  constitute  a  sufficient  or  valid 
defense.     The  principal  defenses  will  now  be  considered. 

Want  of  Criminal  Capacity. — As  the  law  presumes  all  persons  to  be 
capable  of  enjoying  legal  rights  and  of  performing  legal  duties,  it  also  pre- 
sumes their  capacity  to  violate  the  law,  that  is,  to  commit  criminal  offenses. 
When,  therefore,  a  person  is  charged  with  the  commission  of  a  criminal 
offense  the  presumption  of  criminal  capacity  attends  such  a  charge,  and  the 
burden  of  proving  the  existence  of  such  a  want  of  capacity  as  will  serve  to 
deprive  the  act  of  all  criminality,  or  diminish  it  in  character  or  degree,  rests 
upon  the  accused. 

If  there  be  immaturity  in  respect  to  age,  or  mental  unsoundness,  or  if  the 
person  is  so  deficient  in  intellect  or  understanding  as  not  to  be  conscious  of 

'  Di-.  J   A.  Geii.,  G19. 


riiE  isriDEyr.'i  of  the  trial  125 

or  capable  of  controlling  liis  actions,  his  responsibility  for  them  and  for  their 
harmful  consequences  either  ceases  to  exist  or  is  considerably  modified.  For 
acts  over  which  he  has  no  control,  or  as  to  which  he  is  incapable  of  forming 
or  cherishing  an  intention,  he  has  no  responsibility  whatever.  If  he  is 
dangerous  to  society,  the  law  ])rovides  methods  by  which  such  restraint  may 
be  placed  upon  his  movements  as  is  necessary  to  the  well-being  of  the  com- 
munity at  large.  If  tiiere  be  periods  or  occasions  during  wliich  lie  is  of  sound 
mind,  as  to  such  periods  lie  is  fully  accountable  for  liis  acts.  If  Jiis  mental 
faculties  are  merely  impaired,  the  nature  and  extent  of  his  responsibility  is 
a  question  of  fact  to  be  determined  by  the  court;  the  presumption  being  in 
all  cases  that  an  accused  person  is  mentally  sound  and  therefore  res])onsible 
for  liis  acts,  and  the  burden  of  proving  the  existence  of  mental  unsoundness 
or  other  incapacity  lies  u})on  the  defense  and  must  be  established  bv  the 
testimony  of  witnesses. 

Such  want  of  capacity  to  commit  crime  may  be  due  to  mental  or  physical 
causes;  under  this  head  fall: 

(1)  Infancy. — It  is  a  well-establislied  principle  of  criminal  jurisprudence 
that  children  under  seven  are  not  only  presumed  to  be  incapable  of  commit- 
ting crime,  but  the  jiresumption  is  regarded  by  the  courts  as  conclusive  so 
soon  as  the  age  of  the  offender  has  been  satisfactorily  established.  Between 
seven  and  fourteen  the  presumption  of  law  is  against  such  capacity,  but  is 
subject  to  rebuttal  by  evidence  showing  proper  intelligence  and  knowledge 
of  die  character  and  consequences  of  the  act  in  question;  between  the  ages 
of  fourteen  and  twenty-one  the  same  presumption  prevails  as  in  the  case  of 
a  person  of  full  age. 

(2)  Idiocy  and  Lunacy,  orlnsanity. — An  idiot  is  a  person  wlio  has  been 
defective  in  intellectual  powers  from  birth  or  from  a  period  before  the  mind 
received  the  impression  of  any  idea.  One  born  deaf,  dumb,  and  blind  is 
looked  upon  by  the  law  as  in  the  same  state  with  an  idiot.  Idiocy  is 
regarded  at  law,  not  as  the  condition  of  a  deranged  mind,  but  as  an  absence 
of  all  mind,  involving,  as  a  consequence,  an  absolute  incapacity  to  commit 
crime. 

Insanity. — Insanity,  or  lunacy,  differs  from  idiocy  in  that  the  impair- 
ment of  mental  faculties  is,  or  may  be,  casual  and  occasional,  rather  than 
permanent.  Such  periods  of  mental  soundness  are  called  lucid  inferrais, 
and  an  accused  person  as  to  sucli  periods  is  fully  accountable  as  to  his  acts. 

Test  of  Capacity  in  Case  of  Insanity. — It  has  been  seen  that  the  test  of 
responsibility  for  crime  lies  in  the  capacity  or  power  of  the  person  to  commit 
the  act;  and  the  inquiry  is  whether  the  accused  was  capable  of  having  and 
did  have  a  criminal  intent  and  the  capacity  to  distinguish  between  right  and 
wrong  in  reference  to  the  particular  act  charged.'     The  test  of  responsibility 

>  U.  S.  vs.  Young.  25  Fed.  Htp..  710;  Guiteau's  Case,  10  ibid.,  161;  Kansas  vs.  Nixou, 


126  MILITARY  LAW. 

wliere  insanity  is  asserted  is  as  to  the  capacity  of  the  accused  to  distinguish 
between  right  and  wrong  with  respect  to  the  act,  and  the  absence  of  delu- 
sions respecting  tlie  same.  If  the  accused  kr.ew  what  he  was  doing  and  that 
the  act  was  forbidden  by  law,  and  had  power  of  mind  enough  to  be  conscious 
of  what  he  was  doing,  he  was  responsible;'  in  other  words,  had  the  accused 
the  power  to  distinguish  right  from  wrong,  and  the  jiower  to  adhere  to  the 
right  and  avoid  the  wrong?  If  so,  he  is  responsible  for  the  consequences  of 
his  act. 

Drunkenness.' — While  drunkenness  is  no  excuse  for  crime,"  and  one  who 
becomes  voluntarily  drunk  is  criminally  responsible  for  all  offenses  committed 
by  him  while  in  this  condition,  yet  the  fact  of  the  existence  of  drunkenness 
may  be  proper  evidence  to  determine  the  question  of  the  species  or  grade  of 
crime  actually  committed,  esj»ecially  wliere  the  point  to  be  decided  is  whether 
the  accused  was  actuated  by  a  certain  specific  intent.  Thus  the  fact  and 
measure  of  the  drunkenness  of  the  accused  may  properly  be  considered  by 
the  court  as  affecting  the  question  of  the  existence  of  an  animus  fur andi  in 
a  case  of  alleged  larceny/ 

4  Pac.  Kep.,  159;  Oregon  vs.  Murray,  5  iUd.,  55.  For  a  full  discussion  of  insanity  as  a 
defense,  see  Guiteau's  Case,  10  Fed.  Rep.,  161,  and  25  ihid.,  715. 

'  Kansas  vs.  Nixon,  32  Kan.,  205;  id.,  4  Pac.  Rep.,  159. 

"^  As  to  the  offense  of  drunkenness  in  general  at  military  law,  see  the  38th  Article  in 
the  chapter  entitled  The  Articles  op  War. 

2  Coke,  in  laying  down  the  doctrine,  now  general,  that  drunkenness  does  not  exten- 
uate hut  rather  aggravates  the  offense  actually  coniniitted,  says  :  "It  is  a  great  oflfense 
in  itself."  Beverly's  Case,  4  Coke,  123,6.  So  "the  law  will  not  suffer  any  nuin  to 
privilege  one  crime  by  another."  4  Blackstone  Com.,  26.  "The  vices  of  men  cannot 
constitute  an  excuse  for  their  crimes."     Story,  J.,  in  U.  S.  ns.  Cornell,  2  Mason,  111. 

■*  Dig.  J.  A.  Gen.,  378,  par  1.     The  following  are  illustrations  of  the  rule  : 

"1.  Tims  in  a  prosecution  for  passing  counterfeit  money,  the  defendant  may  show 
that  he  was  .so  intoxicated  at  the  time  as  to  be  unable  to  distinguish  between  good  and 
spurious  money. 

"2.  In  an  indictment  for  larceny,  it  might  be  shown  that  the  defendant  was  too 
intoxicated  to  distinguish  the  property  from  his  own  of  similar  appearance,  or  that  he 
was  too  confused  and  bewildered  to  form  an  intention  of  stealing,  or  to  know  he 
was  doing  so. 

"3.  So  wlien  a  person  is  indicted  for  perjury  in  having  falsely  described  a  forraei 
transaction,  he  ma}-  show  in  defense  that  he  was  so  grossly  intoxicated  at  the  time  and 
place  where  the  transaction  occurred  that  he  could  not  then  correctly  understand  what 
was  done,  and  so  in  misstating  it  in  court  he  did  not  do  .so  knowingly  and  corruptly. 

"  4.  So  a  person  indicted  for  'knowingly'  voting  twice  at  the  same  election — under 
a  statute — may  prove  he  was  so  intoxicated  the  second  time  as  to  be  unable  to  know 
he  had  voted  before. 

"5.  On  a  cliarge  of  '  assault  with  intent  to  kill,'  in  order  to  convict  of  the  wliole 
offense  the  specific  intent  must  be  proved  to  exist  ;  it  is  not  necessarily  inferred  from  the 
mere  fact  of  the  assault,  although  the  mode  and  manner  of  the  assault  may  be  sufficient 
to  prove  it.  If,  therefore,  the  accused  was  really  too  drunk  to  be  capable  of  forming 
any  intention  whatever,  and  none  such  had  ever  existed  before,  it  would  be  a  defense  to 
that  part  of  the  charge,  though  not  to  the  minor  ollense  of  a  common  assault. 

"  6.  So,  if  a  .statute  defining  murder  in  the  first  degree  recpiires  it  to  be  done  'delib- 
erately and  preineditately,'  evidence  that  the  defendant  was  too  much  intoxicated  to 
deliberate  and  premeditate  is  certainly  competent ;  ami  if  the  jury  find  the  fact  to  be 
so,  and  there  was  no  evidence  of  a  prior  premeditation,  it  would  be  warranted,  if  not 
required,  in  finding  not  guilty  of  that  degree  of  murder. 

"  So,  in  such  cases,  evidence  of  intoxication  is  competent  upon  the  question  whether  the 
killing  sprang  from  premeditation,  or  from  sudden  passion  excited  by  inadequate  prove- 


THE  IXCJBEiVTS   OF  THE  TRIAL.  127 

Drunkenness  cansed  by  morpliine  or  other  drug  prescribed  by  a  medical 
officer  of  the  army  or  a  civil  physician  may  constitute  an  excuse  for  a  breach 
of  discipline  committed  by  an  otlicer  or  soldier,  provided  it  quite  clearly 
appears  that  this  was  the  sole  cause  of  the  otfense  committed,  the  accused 
not  being  chargeable  with  negligence  or  fault  in  the  case.' 

At  military  law,  where  drunkenness  (the  fact  of  tlie  existence  of  which 
may  always  be  put  in  evidence)  has  entered  into  the  commission  of  a  specific 
offense  requiring  a  peculiar  deliberate  intent  (such  as  desertion,  mutiny,  or 
disobedience  of  orders),  it  will  in  genera!  be  more  logical,  as  well  as  more 
just,  to  charge  the  otfender,  not  with  the  specific  offense,  but  with  the 
drunkenness  as  an  aggravated  disorder,  under  Article  62.  Where  it  is  shown 
that  the  accused  became  drunk  in  the  company  of  a  military  superior,  who 
drank  with  him  or  exerted  no  authority  to  prevent  his  indulging  to  excess, 
this  fact  should  avail  materially  to  mitigate  the  sentence  imposed  upon  him 
by  the  court.  In  such  a  case,  indeed,  it  is  the  siijierior  who  mainly  deserves 
trial  and  punishment.' 

Compulsion. — The  requirement  of  the  43d  Article  of  War  that  "  if  any 
commamler  of  any  garrison,  fortress,  or  post  is  compelled  by  the  officers  and 
soldiers  under  his  command  to  give  up  to  the  enemy  or  to  abandon  it,  the 
officers  or  soldiers  so  off'ending  shall  suffer  death  or  such  other  punisliment 
as  a  court-martial  may  direct,"  constitutes  a  typical  instance  of  compul- 
sion amounting  to  a  complete  defense  in  the  case  of  a  commanding  officer 
charged  with  the  surrender  of  a  post  or  fortified  place  committed  to  his 
charge.     The  character  of  the  constraint  or  compulsion  referred  to  in  the 


cation  ;  that  is,  whether  the  intent  to  kill  preceded  the  provocation  or  was  produced 
by  it. 

"  But  in;ide(iuate  provocation  for  a  sober  man,  insufficient  to  instigate  bis  act,  will  not, 
in  and  of  itself ,  have  such  effect  in  case  of  an  into.xicuted  person.  There  are  not  two 
rules  of  provocation,  one  for  sober  men  and  one  for  drunken  men. 

"  But  the  effect  and  weiirhl  of  the  fad  of  intoxication,  as  tending  to  show  the  absence 
or  want  of  some  specific  intent,  or  premeditation,  is  solely  for  the  jury.  The  court  as  a 
matter  of  law  does  not  draw  any  conclusion  from  it  either  way.  The  fact  of  into.xication 
at  the  moment  is  of  course  not  conclusive  of  a  want  of  intent  or  premeditation.  The 
intent  may  have  been  formed  before,  or  may  exist  notwithstanding  the  intoxication  and 
concurrently  with  it.  But  when  the  offense  is  made  out  from  implied  malice,  such  as 
an_  unprovoked  assault  and  battery,  or  murder,  a  malicious  stabbing,  or  maliciously 
poisoning  a  horse,  the  malicious  intent  being  sutticientlv  proven  by  the  act  itself,  the 
fact  of  druniienness  has  very  little  if  any  weight."  American  Law  Review  (March 
1874). 

See,  also,  Rex  vs.  Pitman,  2  C.  &  P.,  423;  1  Bish.  Cr.  L.,  i^  490.  So  the  fact  of 
drunkenness  has  been  held  admissible  in  evidence  in  cases  of  homicide  up""  the  ques- 
tion of  the  existence  of  malice  as  distinguishing  murder  from  manslauirhter  ;  as  als» 
upon  the  question  of  deliberate  intent  to  kill  in  States  where  the  law  distinguishes 
degrees  of  muriier.  State  vs.  Johnson,  40  Conn.,  136,  and  41  id.,  588  ;  People  vs.  Roirers, 
18  N.  Y..  9;  People  vs.  Hammill,  2  Parker,  223;  People  vs.  Robinson,  id.,  23.');  State 
vs.  McCants,  1  Spears.  384  ;  Kelly  vs.  State,  3  Sm.  &  M.,  518  ;  Sliiuinah'n  rs.  Common- 
wealth, 8  Bush,  463  ;  Swan  m.  Slate,  4  Humph.,  136  ;  Pirtle  rs.  Slate.  9  id.,  6(!3  ;  Ilaiie 
vs.  State  11  id,  l.")4  ;  People  vs.  Belencia,  21  Cal.,  544;  People  r.v.  Kin",  '27  id  509- 
People  vs.  Williams,  43  id.,  344  ;  3  Greenl.  Ev..  gg  6.  148 ;  1  Bish.  Cr.  L.,""ti!3  492.  493.  ' 

'  Dig  J.  A.  Gen.,  379,  par.  2. 

» Ibid  ,  par.  3. 


128  MILITARY  LAW. 

43d  Article  constitutes  the  military  oti'ense  of  mutiny,  which  will  be  dis- 
cussed t'lsewhere. 

Obedience  to  Orders. — -Compulsion  ut  military  law  may  also  consist  in 
obedience  to  the  lawful  orders  of  a  proper  military  superior.  When  the 
existence  of  such  orders  and  the  fact  of  obedience  have  been  established  in 
evidence,  it  will  constitute  a  complete  defense  for  the  act  charged  in  a  trial 
by  court-martial.  For,  since  implicit  obedience  to  orders  is  required  of  all 
military  ])ersons  by  the  Articles  of  War,  it  follows  that  "  the  order  of  a 
comnuindiug  officer  will  in  general  constitute  a  sufficient  authority  for  acts 
regularly  done  by  an  inferior  in  compliance  with  the  same.  Where,  how- 
ever, the  order  of  the  superior  is  a  palpably  illegal  order,  the  inferior  cannot 
justify  under  it;'  and  if  brought  to  trial  by  court-martial  or  sued  in  damages 
for  an  act  done  by  him  in  obedience  thereto,  the  order  will  be  admissible 
only  in  extenuation  of  the  offense."  " 

Other  Forms  of  Compulsion. — In  addition  to  the  forms  of  compulsic^ 
already  discussed,  the  law  recognizes  what  is  called  marital  coercion  as  exist- 
ing in  the  case  of  husband  and  wife,  in  conformity  to  which  princi2:)le  the 
criminal  acts  of  the  wife  when  committed  in  the  presence  of  the  husband 
are  presumed  to  have  been  due  to  his  direction  and  coercion.  The  law 
also  recognizes  it  as  an  excuse  for  crime  that  its  commission  has  been  due 
to  force,  or  to  threats  to  kill  an  offender  or  to  do  him  grievous  bodily  harm 
in  the  event  of  his  refusal  to  take  i)ai-t  in  a  particular  criminal  act.  For 
such  a  defense  to  avail,  however,  the  threats  must  have  been  such  as  to 
place  the  accused  person  in  danger  of  imminent  death  or  serious  bodily 
harm,  and  must  have  been  continuous  during  the  entire  period  of  the  exist- 
ence of  the  act  in  question. 

Ignorance  or  Mistake  of  Fact. — Ignorance  or  mistake  of  fact  is,  subject 
to  certain  (jualihcations  })resently  to  be  described,  regarded  as  in  the  nature 
of  an  excuse  for  the  commission  of  a  criminal  offense.  From  the  point  of 
view  of  legal  responsibility,  ignorance  of  fact  is  said  to  be  either  voluntary 
or  involuntary.  It  is  voluntary^  and  not  susceptible  of  being  pleaded  as  a 
defense  for  crime,  when  one  by  reasonable  exertion  might  have  acquired 
knowledge  as  to  the  consequences  of  his  act.'     And  such  failure  to  acquire 


'  Disr.  J.  A.  Goii.,  547,  par.  6.  See,  also,  on  this  subject,  Harmony  vs.  Milchell.  1 
Blatcli.T  549,  and  Yd  Howard,  431  ;  Durand  n.  Ilollius,  4  Blatcli.,  451  ;  Holmes  r-v. 
Sheridan,  1  D;ll<m,  357;  McCall  vs.  McDowell,  Deady,  2:53,  and  1  Ab.  U.  S.  R..  212; 
Clay  vs.  United  States.  Deveieiix,  25  ;  United  States  vs.  Carr,  1  Woods.  4Hi)  ;  Bates  vs. 
Clark,  5  Otto.  204;  Ford  vs.  Surget,  7  Otto,  594;  Skeen  vs.  Monklieimer.  21  Ind.  1  ; 
Griffin  vs.  Wilcox,  id..  391  ;  RigL^s  vs.  State,  3  Cold.,  851  ;  State  vs.  Sparks,  27  Texas, 
632  ;  Keigldy  cs.  Bell,  4  Fost.  &  Fin.,  805  :  Dawkins  vs.  liokeby.  id.,  831.  The  law  is 
the  same  although  the  order  to  llie  inferior  may  emanate  directly  from  the  President. 
See  Eifort  vs.  Bevins,  1  Bii.^h,  460. 

*  State  rs.  Sparks,  ante;  McCall  vs.  McDowell,  ante;  Miiligan  vs.  Hovey.  3  Bissell, 
13;  Beckwith  v  .  Bean,  8  Otto,  266.  For  a  discussion  of  the  effects  and  binding  force 
of  military  orders,  see  tlie  24ih  Article  in  the  chapter  entitled  The  Auticles  of  Wak. 

'  Anderson,  Law  Diet. 


THE  INCIDENTS  OF  THE  TRIAL.  129 

knowledge  constitutes  a  form  of  guilty  negligence,  which  does  not  avail  as 
a  defense  to  a  person  charged  with  the  commission  of  crime.  Involuntary 
ignorance  does  not  proceed  from  choice,  and  could  not  be  overcome  hy  the 
use  of  any  known  means.  In  the  law  of  crimes,  ignorance  of  fact  is  regarded 
as  a  defect  of  will.'  It  occurs  where,  when  a  man  intending  to  do  a  lawful  act 
does  that  which  is  unlawful,  the  deed  and  the  will  do  not  concur."  Wliea 
admitted  it  is  held  to  affect  tlie  intent,  and  the  burden  rests  upon  the 
accused  of  showing  want  of  knowledge,  and  that  he  was  not  chargeable  with 
either  negligence  or  with  a  want  of  reasonable  care  in  the  performance  of 
the  act  charged.  Where  the  offense  is  defined  by  statute,  and  neither  intent 
nor  guilty  knowledge  is  created  or  implied,  ignorance  of  fact  will  not  con- 
stitute a  defense.' 

The  Alibi. — The  term  alibi  (meaning  elsewhere,  or  in  another  place)  is 
employed  to  describe  that  method  of  defense  to  a  criminal  prosecution  in 
which  the  accused  undertakes  to  show  that  he  could  not  have  committed  the 
offense  charged,  by  evidence  showing  that  he  was  elsewhere,  that  is,  in 
another  place,  at  the  time  of  its  commission;  the  place  being  so  distant  from 
that  in  which  the  offense  was  committed  as  to  preclude  the  possibility  of  his 
participation  in  the  act  charged.  This  method  of  defense  is  called  setting 
up  an  alibi.  As  this  defense  is  liable  to  great  abuse  on  account  of  the  ease 
with  which  it  can  be  fabricated,  testimony  tending  to  prove  an  alibi  should 
be  carefully  scrutinized,  and  should  be  accepted  only  upon  full,  clear,  and 
satisfactory  evidence  of  the  facts  relied  upon  to  establish  the  defense.* 

Testimony  for  the  Defense. — The  testimony  for  the  prosecution  having 
been  submitted,  the  accused  is  now  fully  informed  not  only  as  to  the  nature 
and  extent  of  the  charges  against  him,  but  as  to  the  precise  matters  of  fact 
in  respect  to  which  he  must  be  prepared  to  defend  himself.  If  he  so  desires, 
the  accused  or  his  counsel  may  address  the  court  at  this  stage  of  the  trial, 
setting  forth  his  theory  of  defense  and  outlining  the  facts  which  he  proposes 
to  establish  by  the  testimony  of  witnesses.  The  witnesses  for  the  defense 
are  now  called,  in  the  order  desired  by  the  accused,  sworn  by  the  judge- 
advocate,  and  examined,  cross-examined,  and  questioned  by  the  court  in  the 
same  manner  as  were  the  witnesses  for  the  prosecution.  When  the  examina- 
tion  of  each  witness  has  been  concluded  his  testimony  or  a  portion  of  it 
may,  if  he  so  requests,  be  read  over  to  him  by  the  judge-advocate,  with  a 
view  to  enable  him  to  correct  errors  or  to  explain  or  reconcile  conflicting  or 
contradictory  statements.' 

'  Anderson,  Liw  Diet. 

»  Ibid.:  4  Hlacks.  Com.,  27;  1  ibid.,  46. 

^  Am.  &  Eiig   Encvc,  vol.  iv.,  p   68i),  aud  cases  cited. 

*  As  to  tlie  dei^ree  of  proof  rtHiui.'^ile  to  establi.sh  au  alibi,  it  is  uot  necessjiry  that  it 
should  he  heyond  rea^onahle  douht;  it  is  siittiLieiil  if  it  operates  to  cast  reasonable  doubt 
upon  the  case  cstablisiied  by  the  prosecution. 

''  See  note  4,  page  I'Jl,  ante. 


130  MILITARY  LAW. 

Testimony  as  to  Character.— In  addition  to  the  evidence  properly  rele- 
vant to  the  charges,  the  practice  of  courts-martial  permits  an  accused  person 
to  introduce  testimony  as  to  previous  good  character.  Such  testimony  may 
be  introduced  (1)  in  the  defense  proper,  that  is,  in  disproof  of  the  partic- 
ular offense  with  which  the  accused  is  charged,  and  (2)  with  a  view  to 
affect  the  punishment,  as  to  kind  or  amount,  where  either  element  of  the 
sentence  is  discretionary  with  the  court,  or  to  secure  a  recommendation  to 
mercy,  or  to  obtain  a  mitigation  of  punishment  at  the  hands  of  the  review- 
ing authority  .where  the  sentence  is  mandatory.  In  the  first  case  it  is  to  be 
bonie  in  mind  that  when  an  offense  has  been  clearly  established  in  evidence, 
the  general  character  of  the  offender,  whether  good  or  otherwise,  is  neither 
relevant  nor  important.  The  court  is  sworn  to  find  "  in  accordance  with 
the  evidence  adduced,"  and  if  the  testimony  establishes  the  commission  of 
an  offense  beyond  a  reasonable  doubt,  the  court  must  find  in  accordance 
therewith.  It  is  only  in  a  case  in  which  such  doubt  exists,  or  where  the 
testimony  is  evenly  balanced,  that  testimony  as  to  good  character  may  be 
received  with  a  view  to  influence  the  finding.  In  such  a  case  the  testimony 
sliould  relate  to  the  conduct  outlined  in  the  charges  and  specifications.  If, 
for  example,  the  charges  allege  a  want  of  integrity,  testimony  as  to  the 
character  or  reputation  of  the  accused  for  integrity  would  be  appropriate;  if 
misbehavior  before  the  enemy  be  charged,  testimony  as  to  gallantry  would 

be  apposite.* 

Evidence  of  the  good  character,  record,  and  services  of  the  accused  as  an 
officer  or  soldier  is  also  admissible  in  all  military  cases  without  distinction 
with  a  view  to  mitigate  the  severity  of  the  sentence,  "  in  cases  where  the  sen- 
tence is  mandatory  as  well  as  those  where  it  is  discretionary,  upon  conviction. 
Yov,  while  such  evidence  cannot  avail  to  affect  the  measure  of  punishment, 
it  may  yet  form  the  basis  of  a  recommendation  by  the  members  of  the  court, 
or  induce  favorable  action  by  the  reviewing  officer  whose  approval  is  neces- 
sary to  the  execution  of  the  sentence.  Where  such  testimony  is  introduced 
the  prosecution  may  offer  counter-testimony,  but  it  is  an  established  rule  of 
evidence  that  the  prosecution  cannot  attack  the  character  of  the  accused  till 
the  latter  has  introduced  evidence  to  sustain  it  and  has  thus  put  it  in  issue."  ' 

Calling  of  Witnesses  by  the  Court ;  Recalling  Witnesses ;  Exclusion  of 
Testimony. — A  witness  who  has  testified  maybe  recalled  by  the  court  at  any 
time.'  When  a  co^^rt-martial  desires  to  have  the  benefit  of  the  testimony  of 
a  party  who  has  not  been  introduced  as  a  witness  by  the  prosecution  or 
defense,  it  may  properly  call  upon  the  jndge-advocate  to  have  such  party 

'Macomb,  §  117;  O'Brien,  191;  Dellart,  344;  Benel,  340;  Ives,  137,  314-316; 
Winthrop.  496  ;  Simmons,  5;:;  584,  825-828,  977  •,  Clode,  Mil.  Law,  129  ;  Man  Mil.  Law, 
605,  606;  Man.  for  Courts-marti;il,  45;  Dig.  J.  A.  Geu.,  394,  par.  4;  Harw«»d,  110,  111; 
Adve,  187. 

»  Dii:  .1.  A..  Gen.,  394   iviv   -i 

*  See  page  121,  ante. 


THE  INCIDENTS  OF  TEE  TRIAL.  1^1 

summoned,  or,  if  he  is  a  military  person,  may  apply  to  the  convening 
authority  or  post  commander  to  have  him  ordered  before  it  to  testify,'  and 
it  may  adjourn  the  trial  for  a  reasonable  time  to  await  his  attendance.' 

It  is  the  duty  of  the  court  to  see  that  injustice  is  not  done  the  accused 
by  the  admission  on  the  trial  of  improper  testimony  prejudicing  his  defense 
or  unfairly  tending  to  aggravate  the  misconduct  charged.  In  the  interests 
of  justice,  therefore,  the  court  may  exclude  such  testimony  although  its 
admission  may  not  be  objected  to  on  the  part  of  the  accused.  On  a  similar 
ground  or  for  the  purpose  of  fully  informing  itself  of  the  facts  the  court  may, 
in  its  discretion,  allow  the  introduction,  by  either  side,  of  material  testimony 
after  tlie  case  has  been  formally  closed.  Such  a  proceeding,  however,  must 
be  of  course  exceptional,  and  a  party  should  not  be  permitted  to  offer  testi- 
mony at  this  stage  unless  he  exhibits  good  reason  for  not  having  produced  it 
at  the  usual  and  proper  time." 

On  the  other  hand,  as  has  been  seen,  where  the  accused  pleads  guilty, 
and  the  specification  does  not  fully  set  forth  the  particulars  of  the  offense, 
the  court  is  authorized  to  call  upon  the  judge-advocate  to  introduce  testi- 
mony sufficient  to  inform  itself,  as  Avell  as  the  reviewing  officer,  as  to  the 
extent  of  the  criminality  involved  in  the  offense  and  the  measure  of  punish- 
ment proper  to  be  imposed." 

Member  or  Judge-Advocate  as  Witness. — While  it  is  in  general  undesir- 
able that  a  member  of  a  military  court  should  testify  as  a  witness  at  a  trial 
had  before  such  court,  unless  perhaps  his  testimony  relates  to  character 
merely,  yet  the  fact  that  he  is  called  upon  to  testify  does  not  affect  the 
validity  of  the  proceedings,  nor  does  it  operate  to  debar  the  member  himself 
from  the  exercise  of  any  of  the  duties  or  rights  incident  to  his  membership. 
He  remains  entitled  to  take  part  in  all  deliberations,  including  indeed  those 
had  in  regard  to  the  admissibility  of  questions  put  to  himself  or  as  to  his 
answers  to  questions;  he  will  naturally,  however,  in  general  refrain  from 
expressing  himself  upon  points  arising  in  connection  with  his  own  evidence." 

'  In  tliis  case  the  court  is  said  to  orit^inate  evidence.  It  has  not  been  the  practice  in 
this  country  for  the  couvenini^  authority  to  detail  an  officer  to  attend  a  military  covirl  in 
a  ministe;ial  capacity  — to  summon  witnesses,  enforce  the  attendance  of  the  accused,  etc. 
In  the  special  case,  indeed,  of  the  persons  charged  with  complicity  in  the  assassination 
of  President  Liiicohi  and  tried  bv  miiilarv  commissiou,  it  was  ordered  by  the  President, 
May  1,  IHtJ."),  as  foUows:  ' '  That'Brcvet  Major-Geuer.al  Hartrauft  be  assigned  to  duty 
as  special  provost  marshal  general  for  tlie  purposes  of  said  trial,  and  attendance  \ipoQ 
said  commission!  and  the  execution  of  its  mamhites."    Dig.  J.  A.  Gen.,  olo,  par.  S.  note. 

»  Dig.  J.  A.  Gen  .  315,  par.  8  ;  De  Hart,  85  ;  Benet,  357  ;  Ives,  133.  134:  Winthrop. 
402;  Simmons,  §  948:  Man.  for  Courts-martial,  44;  Dig.  J.  A.  Gen..  315,  par.  8  ; 
Kennedy.  141;  Adve,  179;  Gen.  Court-martial  Orders  48,  Div.  Pacific.  1880. 

»  Disr.  J.  A.  Geii.,  316.  par.  10.  Compare  Eberhardt  vs.  State,  47  Ga.,  598  :  and  see 
the  Trial,  by  court-martial,  of  B.  G.  Harris  (E.v.  Doc.  No.  14,  Ho.  of  Ueps..  ;39th  Cong., 
1st  sess.,  p.  25),  where,  on  the  day  on  which  the  accused  was  to  present  his  final  argu- 
ment to  the  court,  and  which  wa's  two  days  after  the  forriial  closing  of  the  case,  the 
defense  was  allowed  to  introduce  new  testimony  on  the  merits. 

*  Ibid.,  par.  9.  See,  also,  pp.  115-117,  ante.  Compare  the  recent  case  of  State  m, 
O'Connor,  65  Missouri,  374. 

*  Dig.  J.  A.  Gen.,  496,  par.  5. 


132  MILITARY  LAW. 

Should  the  judge-advocate  be  required  to  give  evidence  as  a  witness,  the 
clerk  or  reporter  of  the  court  may  record  his  testimony  while  on  the  stand ; 
or,  if  there  be  no  clerk  or  reporter,  he  may  record  his  own  testimony  in  the 
same  manner  as  that  of  any  other  witness." 

The  Accused  as  a  Witness. — By  the  Act  of  March  16,  1878,  it  is 
expresslv  provided  that  at  trials  before  courts-martial  and  courts  of  inquiry 
"  the  person  charged  shall  be  a  competent  witness  at  his  own  request,  but 
not  otherwise,  and  his  failure  to  make  such  request  shall  not  create  any 
presumption  against  him."  ''  But  parties  testifying  under  this  Act  have  no 
exceptional  status  or  privileges;  they  must  take  the  stand  and  be  subject  to 
cross-examination  like  other  witnesses,"  The  submission  by  the  accused  of 
a  sworn  written  statement  is  not  a  legitimate  exercise  of  the  authority  to 
testify  conferred  by  the  statute  and  such  a  statement  should  not  be  admitted 
in  evidence  by  the  court.' 

STATEMENTS    AND    ARGUMENTS. 

The  testimony  in  behalf  of  the  accused  having  been  completed,  as  evi- 
denced by  the  announcement  made  by  him,  in  open  court,  to  the  effect  that 
he  has  uo  further  testimony  to  offer,  he  is  permitted  to  submit  a  statement 
to  the  court  in  support  of  the  case  presented  in  the  evidence  for  the  defense. 
This  statement,  which  is  usually  in  the  nature  of  an  argument,  may  be  sub- 
mitted by  the  accused  in  person;  or,  if  he  so  desire,  it  may  be  presented  by 
counsel  acting  in  his  belialf ,  If  there  be  no  stenographer  present,  the  state- 
ment should  be  submitted  in  writing  and  appended  to  the  record,  in  which 
event  it  should  be  signed  by  the  accused. 

The  term  ''statement,"  applied  by  custom  of  the  service  to  this  step  in 
the  procedure,  indicates  that  it  contains,  in  addition  to  matter  of  argument, 
allegations  of  fact,  some  of  which  may  not  have  been  presented  to  the  court 
in  the  form  of  evidence  during  the  course  of  the  trial.  In  the  early  practice 
of  courts-martial  the  statement  was  the  only  agency  by  means  of  which  the 
accused  could  present  to  the  court  his  side  of  the  case,  or  bring  to  the  atten- 
tion of  the  court  facts  which  had  not  been  established  by  the  testimony  of 
witnesses.  As  the  accused  now  has  the  right  to  be  sworn  and  to  testify  in 
his  own  behalf,  the  court  should  consider  this  fact  in  attaching  weight  to 


>  Di"-.  J.  A.  Gen..  460,  par.  19. 

«  20  Stat,  at  Lfirse.  30.  See  G.  C.  M.  O.  8,  If),  Dept.  of  the  Platte,  1879;  do.  6,  id., 
1880:  do.  34,  Dept.  of  Te.xas,  1879.  And  compare  Wlieeldeii  vs.  Wilson,  44  M'tine,  11; 
Mar.x  vs.  People,  63  Barb.,  618;  Bralieh  vs.  People,  65  id.,  4b;  People  vs.  McGnngill,  41 
Cal.,  4-29;  Clark  r.s.  State.  50  Ind.,  514. 

'  Spies  T«.  Illinois,  123  U.  S.,  131.  If  incompetent  from  any  ci use,  the  accused  cannot 
testify  in  his  own  behalf;  U.  S.  vs.  Hollis,  43  Fed.  Rep.,  248.  His  credibility  is  for  the 
jury  (court)  to  determine.     U.  S.  us.  Brown,  40  F.  li.,  4r)7. 

••  Disr.  J.  A.  Gen.,  749,  p.ar.  2.  It  may  be  admitted,  however,  as  an  unsworn  state- 
ment to  which  the  court  will  attach  such  weight  as  it  believes  it  to  deserve.  See,  also, 
the  title  "  Competency  "  in  the  chapter  entitled  EvinKNCE. 


THE  INCIDENTS   OF  THE   TRIAL.  Wd 

such  allegations  of  fact  as  may  be  embodied  in  tlie  statement  and  will  proji- 
erly  require  something  more  in  the  way  of  corroboration  than  was  formerly 
the  case. 

A  large  freedom  of  expression  in  his  statement  to  the  court  is  allowable 
to  an  accused,  especially  in  his  comments  upon  the  evidence.  So  an  accused 
may  be  permitted  to  reflect  within  reasonable  limits  upon  the  apparent 
anivius  of  his  accuser  or  prosecutor,  though  a  superior  officer  and  of  hio-h 
rank.  But  an  attack  upon  such  a  superior  of  a  personal  character  and  not 
apposite  to  the  facts  of  the  case  is  not  legitimate;  nor  is  language  of  marked 
disrespect  employed  toward  the  court.  Matter  of  this  description  may 
indeed  be  required  by  the  court  to  be  omitted  by  the  accused  as  a  condition 
to  his  continuing  his  address  or  filing  it  with  the  record.^ 

It  is  settled  in  our  military  procedure  that  the  closing  statement  or 
argument,  where  addresses  are  presented  on  both  sides,  shall  be  made  on  the 
part  of  the  prosecution.  The  judge-advocate,  however,  may,  and  in  practice 
frequently  does,  waive  the  right  of  offering  any  argument  or  remarks  in 
reply  to  the  address  of  the  accused.  On  the  other  hand,  the  accused  may 
waive  tlie  right,  and  the  judge-advocate  alone  present  a  "statement,"  and 
the  court  is  not  authorized  to  deny  this  right  to  the  judge-advocate.' 

^  Dig.  J.  A.  Gen.,  711,  par.  3.  In  any  case  tried  by  court-martial  the  accused  may,  it" 
he  thinks  proper  (and  whether  or  not  he  has  taken  the  stand  as  a  witness  *),  present  to 
the  court  a  statement  or  address  either  verbal  or  in  writing.  Such  statement  is  not  tvi- 
dence;\  as  a  personal  defense  or  argument,  liowever,  it  may  and  properly  should  be 
taken  into  consideration  by  the  court.     Ibid.,  710,  par.  1. 

While  the  statement  is  not  evidence,  and  the  accused  is  not  in  general  to  be  hehl 
bound  by  the  argumentative  declarations  contained  in  the  same,  yet  if  he  clearly  and 
unequivocally  admits  therein  facts  material  to  the  prosecution,  such  may  properly  be 
viewed  by  the  court  and  the  reviewing  officer  as  practical]}'  facts  of  the  case.f  So  where 
the  accused,  in  his  statement,  fully  admits  that  certain  facts  existed  substantially  as 
proved,  lie  may  be  regarded  as  waiving  objection  to  any  irregularity  in  the  form  ofthe 
proof  of  the  same.     Ibid.,  par.  3. 

'  Dig.  J.  A.  Gen  .711,  par.  4.  The  judge-advocate  is  entitled  by  usage  to  sum  up 
the  case  and  present  an  argument  at  the  conclusion  of  the  trial,  even  though  the  accused 
declines  to  make  aigument  or  statement.  The  court  is  not  authorized  to  deny  this  right 
to  be  heard  to  the  judge-advocate.      Ibid..  4(52.  par   30. 

In  our  practice  the  judge-advocate  is  entitled  to  the  closing  argument  or  address  to 
the  court,  and  he  may  present  an  address  although  the  accused  waives  his  riffht  to 
present  any:  the  function  of  the  judge  advocate  at  this  stage  of  the  proceedings  not 
being  contiiied  merely  to  a  replying  to  the  accused.  The  judije-advocate  in  liis  address 
is  not  authorized  to  read  to  the  court  evidence  or  written  statements  not  introduced 
upon  the  trial  and  whicli  the  accused  has  liad  no  opportunity  to  controvert  or  comment 
upon.     Ibid.,  460.  par.  21. 

'Vhe  publication  by  an  officer,  after  his  acquittal,  of  the  statement  presented  by  him 
to  tlie  court  on  his  trial,  in  whicli  he  reflected  in  violent  and  vituper.-itive  languatre  upon 
the  motive  and  conduct  of  an  officer  of  the  .^^amc  regiment,  liis  accuser,  and  ^deimu need 
him  as  devoid  of  the  instincts  of  a  gentleman  and  a  disgrace  to  the  service,  held  to  c<in- 
stitute  a  serious  military  offcn.se.  to  the  inejudice  of  good  order  and  military  discipline. 
if  not  indeed  a  violation  of  Art.  61;  and  further  that  it  w.-is  no  defense  to  such  a  publica- 
tion that  the  court  on  the  trial  had  permitted  the  .statement  to  be  made  and  recorded 
IMd.,  711,  par.  5. 

•  See  O.  C.  M.  O.  3.  Dept.  of  the  Missouri,  1880. 

+  That  a  sworn  statt'nuMit  oantiot  l>e  made  tn  sfrv»>  as  the  testimony  of  the  acou<e(1  as  a  ir;7iic« 
uniler  the  Act  of  March  16,  t><rs.  see  Disr.  J   .\.  Oen..  749.  p.nr  -J. 

t  S>imilarly  as  a  fact  clearlv  ailniitte<i  or  assumed  in  the  course  of  a  trial  mav  l>e  considered  as  much 
in  the  case  as  if  it  had  beeu  expressly  proved.    See  Paige  vs.  Fazackerly,  3t>  Barb.,  3W. 


134  MILITARY  LAW. 

During  the  progress  of  the  case,  what  are  known  as  interlocutory  ques- 
tions arise  wliich  are  decided  by  the  court  before  proceeding  with  the  trial. 
Such  are  objections  to  witnesses  on  the  ground  of  competency;  to  the  ad- 
mission., exclusion,  or  relevancv  of   testimony;    and   the  like.     Upon  such 
questions  both  the  prosecution  and  defense  have  a  right  to  be  heard,  and  the 
arguments  presented  on  cacli  side,  together  with  the  decision  of  the  court, 
are  made  a  part  of  the  record.      The  party  raising  the  issue  is  first  heard, 
and  is  followed  by  the   otlier  side;  in  important  questions  the  party  upon 
whom    the   burden   of   proof   is    cast  by  the  issue  that  is  presented  being 
allowed  the  right  to  address  the  court  first,  and  later  to  make   reply  to  the 
arguments  of  the  opposite  party.     If  the  issue  raised  is  one  of  considerable 
importance,  involving   the  hearing  of  testimony,  and  if  discussion  of  the 
questions  presented    is   necessary  before  a  just    decision   can   be    reached, 
the  court  is  closed  for   the  purpose  of  such  discussion  and    decision;  the 
judge-advocate,  the  accused  and  his  counsel,  the  reporters,  Avitnesses,  and 
spectators,  if  any  be  present,  withdraw,  leaving  in  the  room  only  the  mem- 
bers of  the  court-martial.     After  discussion  the  question  is  put  by  the  Pres- 
ident and   is  decided  by  a  majority  of  votes  ;  the  court  is  then  reopened, 
the  accused  and  judge-advocate  returning,  and  the  decision  is  announced  by 
the  President  in  open  court  and  is  entered  upon  tlie  record  by  the  judge- 
advocate.     Where  the  issue  raised  is  not  important — as  where  the  relevancy 
of  a  question   is  in  issue — the  matter  is  frequently  decided  by  the  court 
without  leaving  their  seats. 

HOURS    OF    SESSION. 

The  94th  Article  of  War  contained  the  requirement  that  "proceedings 
of  trials  shall  be  carried  on  between  the  hours  of  eight  in  the  morning  and 
three  in  the  afternoon,  excepting  in  cases  which,  in  the  opinion  of  the  officer 
appointing  the  court,  require  immediate  example."  This  article  was 
expressly  repealed  by  the  Act  of  March  2,  1901,  so  that  there  is  now  no 
statutory  restriction  upon  the  hours  of  session  save  such  as  may  be  imposed 
by  the  convening  authority  or  by  the  court  itself  in  a  particular  trial.  As 
the  record  of  each  day's  proceedings  should  be  completed  before  the  hour 
appointed  for  the  next  meeting  of  the  court,  in  order  tliat  the  record  of  the 
preceding  day  may  be  read  at  the  opening  of  the  session,  should  the  court 
so  desire,  the  length  of  each  day's  session  is  thus  seen  to  be  determined  by 
the  time  required  to  make  a  fair  copy  of  the  previous  day's  proceedings. 
This  will  depend  upon  the  manner  in  which  the  ])roceedings  are  recorded. 
If  a  stenographer  is  employed,  the  daily  sessions  can  be  longer  than  will  be 
the  case  if  tlie  questions  are  reduced  to  writing  and  the  proceedings  are 
written  up  by  the  judge-advocate. 

Sessions  on  Sunday ;  Closed  Sessions ;  Exclusion  of  Persons. — There  is  no 
law  prohibiting  a  court-martial  of  the  United  States  from  sitting  on  Sunday; 


THE  ly  CI  DENTS  OF  THE  TRIAL.  135 

and  the  fact  that  a  sentence  of  snel)  a  court  is  adjudged  on  that  day  can 
affect  in  no  manner  its  validity  in  law.' 

It  is  within  the  power  of  tiie  convening  authority  to  direct  a  court-mar- 
tial to  hold  a  trial  with  closed  doors  when  the  case  is  of  such  a  cliaracter  that 
the  publication  of  the  evidence  would  scandalize  the  service.'  A  court- 
martial  is  also  authorized,  in  its  discretion,  to  sit  with  closed  doors.  P]xcept, 
however,  when  temporarily  closed  for  deliberation,  courts-martial  in  this 
country  are  almost  invariably  open  to  the  public  during  a  trial.' 

A  court-martial  is  authorized  to  exclude  from  its  session  any  person  who 
it  has  good  reason  to  believe  will  endeavor  to  intimidate  or  interrupt  the 
witnesses,  or  otherwise  cojiduct  himself  in  a  disorderly  manner." 

Adjournments. — Within  the  limits  of  time  prescribed  in  the  94th  Article 
of  War,  a  general  court-martial  has  complete  control  of  the  time  and  dura- 
tion of  its  sessions,  and  may  meet  and  adjourn  at  such  hours  and  for  such 
reasons  as  it  may  deem  expedient  or  advantageous  to  the  public  interests. 
It  may  regulate  the  length  of  its  daily  sessions,  and  may  adjourn,  at  any 
instant  of  its  session,  for  any  reason  that  may  commend  itself  to  its  judo^- 
ment.  When  it  adjourns  it  may  fix  the  hour  for  its  next  meetinsr,  or  it 
may  ailjourn  to  meet  at  the  call  of  the  president.  It  may,  by  proper  resolu- 
tion, fix  the  hours  of  its  daily  sessions,  subject,  however,  to  the  qualirication 
that  such  meetings  must  fall  within  the  hours  assigned  in  the  statute.  If, 
at  a  particular  session,  there  be  no  agreement  as  to  adjournment,  it  is  the 
duty  of  the  president  at  the  hour  of  three  p.m.  to  declare  the  court 
adjourned.* 

A  court-martial  in  session  at  a  military  post  or  station  is  authorized  to 
adjourn  to  the  quarters,  at  the  same  post  or  station,  of  a  sick  witness  and 

'  Dig.  .J.  A.  Gen.,  318,  par.  18. 

'  Judge-Adv.  Gea. 

»Dig.  J.  A.  Geu..  318,  par.  20. 

*  Ibid.,  par.  21. 

•  The  adjournment  from  day  to  day  of  a  military  court  is  not  required  by  law  or 
regulation  to  be  authenticated  by  the  signatures  of  the  president  and  judge-advocate. 
Digest  J.  A.  Geu.,  145,  p;ir.  1. 

While  the  practice  of  noting  the  adjournment  of  the  court  at  the  end  of  the  record  of 
a  trial  is  a  usual  and  proper  one,  and  is  often  of  service  iu  indicating  the  seipience  of  the 
cases  tried  and  the  course  and  order  of  the  bu.siness  transacted,  a  statement  of  such 
adjournment  is  not  an  essential  part  of  the  record  of  proceedings,  and  its  omission  will 
not  affect  their  validity.     Ibid.,  par.  2. 

Where  the  order  convening  a  military  court  is  in  the  usual  form,  requiring  it, 
generally,  to  tr}'  such  cases  as  may  be  brought  before  it,  an  adjournment  at  some  period 
of  its  sessions  without  a  da}'  tixetl  for  its  reassembling  will  not  preclude  its  meeting 
again  and  contiiuiiug  its  sessions  till  its  business  i-<  terminated.      Ibid.,  par.  3. 

An  adjournment  sine  die  of  a  court-martial  is  quite  without  legal  sigtiiticance, 
having  no  more  legal  effect  than  a  simple  ji'ijuurnim'nt.  Such  an  adjournment  does  not 
dissolve  the  court,  since  a  military  court  lias  no  power  to  terminate  its  own  existence  or 
divest  its  authority.     Ibid.,  par.  4. 

After  having  entered  upon  a  trial  which  has  to  be  suspended  on  account  of  the 
absence  of  material  witnesses  or  for  other  cause,  a  court-martial  is  authorized,  in  iis 
discretion,  to  take  up  a  new  case  not  likely  to  involve  an  extended  investigation,  and 
proceed  with  it  to  its  termination  before  resuming  the  trial  of  the  hrst  case.  Ibid.,  316, 
par.  12. 


136  MILITARY  LAW. 

there  take  his  testimony  if  he  is  in  fact,  as  certified  by  the  medical  officer, 
too  ill  to  come  to  the  court-room.' 

A  court-martial  has  no  power  to  terminate  its  own  existence  or  function. 
AVhere,  therefore,  it  has  adjourned  sine  die,  it  may,  without  being  formally 
reconvened  in  orders,  reassemble  and  take  up  and  try  a  case  referred  to  it 
by  the  convening  authority,  through  its  president  or  judge-advocate,  pre- 
cisely as  if  it  had  not  adjourned  at  all.  It  is  its  duty,  indeed,  to  hold  itself 
in  readiness  to  try  all  cases  so  referred  until  formally  dissolved  by  the  con- 
vening officer  or  his  successor  in  the  command.'' 

A  court-martial  is  not  legally  dissolved  till  officially  informed  of  an  order 
from  competent  authority  dissolving  it.  The  proceedings  of  a  court- 
martial  had  after  the  date  of  an  order  dissolving  it,  but  before  the  court  has 
become  officially  advised  of  such  order,  will  thus  be  quite  regular  and  valid. 
Where  an  order  dissolving  forthwith  a  court-martial  has  been  duly  officially 
received  by  the  court  and  has  thus  taken  effect,  an  order  subsequently 
received  revoking  this  order  will  be  entirely  futile.  It  will  not  revive  the 
court,  which,  to  be  qualified  for  further  action,  must  be  formally  recon- 
vened as  a  new  and  distinct  tribunal.' 

Except  where  it  sustains  a  challenge  under  Art.  88,  a  court-martial  is 
not  authorized  to  dispense  with  the  attendance  of  a  member."  It  cannot 
excuse  a  member  to  enable  him  to  attend  to  other  duties.  For  such  purpose 
he  must  be  duly  relieved  by  the  convening  authority.^ 

Absence  of  Member  or  Judge- Advocate. — It  does  not  invalidate  the  pro- 
ceedings of  a  court-martial  that  a  member  who  has  been  present  during  a 
portion  of  the  trial,  and  has  then  absented  himself  during  a  portion,  has 
subsequently  resumed  his  seat  on  the  court  and  taken  part  in  the  trial  and 
judgment.  Nor  is  the  legal  validity  of  the  proceedings  affected  by  the 
adding  of  a  new  member  to  the  court  pending  the  trial.  In  either  case, 
however,  the  testimony  wliich  has  been  introduced  and  the  material  pro- 
ceedings which  have  been  had  while  the  new  or  absent  member  was  not 
present  should  be  communicated  to  him  before  he  enters  or  re-enters  upon 
his  duties  as  a  member.  Such  was  the  ruling  of  the  Secretary  of  War  on 
Genl.  Hull's  trial,  and  this  precedent  was  followed  in  repeated  though  not 
frequent  cases  during  the  late  war.  For  a  member,  however,  who  has  been 
absent  during  a  substantial  part  of  a  trial  to  return  and  take  part  in  a  con- 
viction and  sentence  is  certainly  a  marked  irregularity,  and  one  which  may 
well  induce  a  disapproval  of  the  findings  and  sentence  in  a  case  where  there 
is  reason  to  believe  that  the  accused  may  have  suffered  material  disadvantage 
from  the  member's  action.     It  is  of  course  to  be  understood  that  a  member 

'  Diff.  J.  A.  Gen.,  146,  par.  5;  see  G.  C.  M.  O.  37,  Dopaitment  df  the  East,  1870. 

°-  Ihid.,  ai7,  par.  18.  '  Ibid.,  par.  14 

*  VII  Opin.  Att.-Gen.,  9ft.  If  i1  be  found  neces.sjiry.  on  account  of  the  .sickness  of 
a  witness,  to  adjourn  to  a  place  other  than  in  whicli  tlie  court  is  ordered  to  sit,  the 
authority  of  tlie  convening  autliority  must  be  obtained  in  advanc  e  of  the  journey. 

»  Dig.  J.  A.  Gen.,  317,  par.  15. 


THE  hWWENTS   OF  THE   TlilAL.  137 

cannot  legally  resume  liis  seat  where,  by  his  absenting  himself,  the  court  has 
been  reduced  below  five  members.' 

An  absence  of  the  judge-advocate  from  the  court  during  the  trial  does 
not  per  se  ailect  the  validity  of  the  proceedings,  but  is  of  course  to  be  avoided 
if  possible.  When  the  judge-advocate  is  obliged  to  absent  himself  tem- 
porarily, the  court  should  in  general  suspend  the  proceedings  for  the  time; 
or  if  liis  absence  is  to  be  prolonged,  should  adjourn  for  a  certain  period.' 

New  Members. — The  question  of  changes  in  membership  lias  already 
been  discussed,  and  it  is  only  necessary  to  observe,  at  this  ])oiMt,  that  to 
"  add  a  new  member  to  a  military  court  after  any  material  part  of  the  trial 
has  been  gone  through  with  must  always  be  a  most  undesirable  measure, 
and  one  not  to  be  resorted  to  except  in  an  exceptional  case  and  to  prevent  a 
failure  of  justice.  Adding  a  member  after  all  the  testimony  has  been  intro- 
duced and  nothing  remains  except  the  finding  and  sentence  is  believed  to 
be  witliout  precedent."  ' 

Performance  of  Other  Duty  by  Member  of  Court  or  by  the  Judge- 
Advocate. — The  performance  of  other  duties  by  members  of  courts-martial  is 
regulated  by  the  Army  Regulations,  which  provide  that  "  a  member  stationed 
at  the  place  where  a  court-martial  sits  is  liable  to  duty  with  his  eommaiul 
during  the  adjournment  of  court  from  day  to  day."  *  The  rule  in  respect 
to  the  judge-advocate  is  not  quite  the  same,  since  his  duties,  unlike  those 
of  the  members,  do  not  cease  with  the  daily  adjournment  of  the  court;  but 
"  a  judge-advocate  of  a  court-martial  may  be  detailed  to  perform  other  duty, 
as  that  of  officer  of  the  day  or  member  of  a  board  of  survey,  if  such  duty 
will  not  interfere  with  his  duties  as  judge-advocate.  In  general,  how- 
ever, no  duties  in  addition  to  those  incidental  to  his  function  as  judge- 
advocate  should  be  imposed  upon  him  pending  an  important  trial."  '' 

'  Dig.  J.  A.  Gen.,  494,  par.  3.  A  member  of  Ji  court-murtial,  though  strictly 
answerable  only  to  the  convening  authority  for  a  neglect  to  i)e  present  at  a  session  of  the 
cotn-t,  will  properly,  when  prevented  from  attending,  conununicate  the  cause  of  his 
absence  to  the  president  or  judge-advocate,  so  that  the  same  may  be  entered  in  the  pro- 
ceedings. "Where  a  member,  on  reappearing  after  an  absence  from  a  session,  fails  to 
offer  any  explanation  of  such  absence,  it  will  be  proper  for  the  president  of  the  court  to 
ask  of  him  such  statement  as  to  the  cause  of  his  absen(!e  as  he  may  think  proper  to  make. 
It  need  scarcely  lie  added  that  tiie  absence  of  a  member  does  not  affect  the  legality  of  the 
)n-oc(  edings,  provided  a  (piorum  of  members  remain.*  Jbid.,  par.  2;  .see,  also,  Dig.  J. 
A.  Gen.,  p.  495,  par.  4. 

«  Ibid.,  460,  par.  18;  Ives,  143. 

»  Pnii. ,  494,  par.  3. 

•*  Parairraph  918,  Army  Regulations  of  1895.  As  no  more  lime  is  required  of  a 
member  in  tlie  performance  of  court-martial  dutj-  than  that  which  is  consumed  bv  the 
diiily  sessions  of  the  court,  the  present  practice  under  the  regulation  is  to  refpiire  mem- 
l)ers  stationeil  at  the  place  at  which  the  court  is  assembled  to  disciiarge  such  regular  or 
casual  military  duties  as  are  or  can  be  performed  liuring  the  periods  of  adjournment 
from  day  to  day.  "In  an  emergenc}',  indeed,  arising  out  of  a  state  of  war  or  other 
public  exigency,  additional  service  may  be  imiiosed  upon  such  officers  ;  in  a  case  of  this 
kind,  however,  their  service  on  the  court  would  preferably  be  temporarily  suspended." 
Dig.  J.  A.  Gen.,  493,  par.  1. 

*  Dig.  J.  A.  Gen.,  460,  par  20. 

•  7.  OpiD.  Alt.  Gen..  101. 


138  MILITARY  LAW. 

Reduced  Membership.— Where,  in  the  course  of  a  trial,  the  number  of 
the  members  of  a  general  court-martial  is  reduced  by  reason  of  absence, 
challenge,  or  tlie  relieving  of  members,  the  court  may  legally  proceed  with 
its  business  so  long  as  five  members,  the  minimum  quorum,  remain;  it  is 
otherwise,  however,  where  the  number  is  thus  reduced  below  five.' 

While  a  number  of  members  less  than  five  cannot  be  organized  as  a  court 
or  proceed  with  a  trial,  they  may  perform  such  acts  as  are  preliminary  to 
the  organization  and  action  of  the  court.  Less  than  five  members  may 
adjourn  from  day  to  day;  and  where  five  are  present  and  one  of  them  is 
challenged,  the  remaining  four  may  determine  upon  the  sufficiency  of  the 
objection.' 

DELIBEEATIONS. 

Behavior  of  Members. — Save  for  the  requirement  of  the  87th  Article  of 
War  that  "  all  members  of  a  court-martial  are  to  behave  with  decency  and 
calmness,"  and  for  the  provision  of  the  95th  Article  that  "members  of  a 
court-martial  in  giving  their  votes  shall  begin  with  the  youngest  in  commis- 
sion," the  statutes  are  silent  respecting  the  procedure  of  courts-martial  as 
deliberative  bodies.  The  eJffect  of  the  statutes  above  cited,  and  of  the 
interpretations  that  have  been  placed  upon  them  from  time  to  time  by  the 
highest  military  authority,  is  to  insure  an  absolute  equality  of  membership 
in  all  matters  having  to  do  with  the  preparation  and  expression  of  opinions. 

The  control  exercised  by  the  President  of  the  court-martial  is,  as  has 
been  seen,  that  vested  in  the  chairman  of  a  deliberative  body  by  the 
ordinary  rules  of  parliamentary  procedure,  and  partakes  in  no  respect  of  the 
nature  of  military  command.  As  the  organ  of  the  court,  he  preserves  order 
in  its  presence  and  gives,  as  a  matter  "  of  course,  the  directions  necessary  to 
the  regular  and  proper  conduct  of  the  proceedings;  but  a  failure  to  comply 
with  a  direction  given  by  him,  while  it  may  constitute  '  conduct  to  the 
prejudice  of  good  order  and  military  discipline,'  cannot  properly  be  charged 
as  a  '  disobedience  of  a  lawful  command  of  a  superior  officer,'  in  violation 
of  Article  21."* 


'-  D\cf.  .1.  A.  Gen.,  87.  y.ar.  3. 

'  Ibid.,  par.  4.  A  court  reduced  to  foiir  members  and  thereupon  adjourning  for  au 
indefinite  period  does  not  dissolve  itself.  In  adjourning  it  sliouid  report  the  facts  to  the 
conveuinfr  authority  and  await  his  orders.  He  may  at  any  time  complete  it  by  the 
addition  of  a  new  member  or  members,  and  order  it  to  reassemble  for  business.  Ibid., 
88,  par.  5.  Where,  thoutrh  reduced  by  the  absence  of  members,  operation  of  challenges, 
etc  ,  to  below  five  members  a  court  yet  proceeds  with  and  concludes  the  trial,  its 
furt';er  proceedings,  including  its  finding  and  sentence  (if  any),  are  unauthorized  and 
inoperative.     Ibid.,  par.  6. 

3  Dig.  .J.  A.  Gen.,  609.  par.  4.  .  . ,        u 

The  president  of  a  military  court  has  no  command  as  such  As  presiden  the  cannot 
give  an  order  to  any  other  member.  Ibid.  See.  also,  the  title  TJte  Officers  of  Courts- 
martial  in  the  chapter  entitled  The  Incidknts  of  the  Tkial. 

In  deliberations  on  questions  raised  upon  a  trial,  as  well  as  in  the  finding  and  the 
adjudging  of  the  sentence,  the  presiding  membi-r  is  on  a  perfect  equality  with  the  other 


THE  INCIDENTS  OF  THE  TRIAL.  139 

For  the  president  of  a  court-martial  to  usriuine  to  adjourn  the  court 
against  the  vote  of  the  maioritv  of  the  members  would  be  an  unauthorized 
act  and  a  grave  irregularity,  properly  subjecting  him  to  a  charge  under  the 
62d  Article.' 

CONTEMPT    OF    COUIIT. 

The  SOth  Article  of  War  confers  upon  a  court-martial  the  power  to 
"  punish,  at  discretion,  any  person  who  uses  any  menacing  words,  signs,  or 
gestures  in  its  presence,  or  who  disturbs  its  proceedings  by  any  riot  or 
disorder."  The  contempt  described  in  the  Article  is  that  known  to  the  law 
as  direct  or  criminal  contempt,  that  is,  the  act  or  omission  constituting  the 
offense  must  have  taken  place  in  the  actual  presence  of  the  court  itself. 
The  term  constructive  contempt  applies  to  similar  conduct  committed  out- 
side the  presence  of  the  court,  or  to  a  willful  failure  to  obey  its  lawful 
mandate.  Over  this  form  of  contempt  courts-martial  have  no  jurisdiction; 
if,  however,  constructive  contempt  be  charged  against  a  military  person,  the 
court  may  cause  charges  to  be  prepared  and  submitted  to  the  proper  conven- 
ing authority;  but  if  the  otfender  be  a  civilian,  not  subject  to  military  juris- 
diction, the  court-martial  is  absolutely  without  power  to  proceed  in  the 
matter,  and  can  neither  apply  a  remedy  nor  request  its  application  by  the 
civil  authority. 

Being  a  tribunal  of  special  and  limited  jurisdiction,  a  court-martial  has 
only  statutory  powers.  Its  judicial  authority  being  derived  wholly  from 
statutes  (chieily  from  the  Articles  of  War),  it  can  exercise  no  common-law 
functions,  such,  for  example,  as  the  general  power  to  punish  for  contempt. 
Its  origin  and  authority  being  statutory,  the  several  enactments  investing  it 
with  its  powers  must  be  closely  followed.  No  presumption  can  be  made  in 
favor  of  its  jurisdiction.'^ 

members.  He  has  no  casting  vote,  nor,  if  the  vote  is  even,  does  Jiis  vote  have  any 
greater  or  other  weight  or  effect  than  tlnit  of  any  other  member.     Ibid.,  par.  3. 

"  A  presi<ient  of  llie  court  will  not  be  uniiounced.  The  officer  liigliesl  in  rank  present 
will  act  as  president."  Besides  liis  dutie.'!  and  privileges  as  a  member,  the  president  is 
the  organ  of  the  court  to  maintain  order  and  conduct  its  business.  He  speaks  and  acts 
for  the  court  in  every  instmce  where  a  rule  of  action  has  been  prescribed  bylaw,  reguhi- 
tions,  or  its  own  resolution.  He  administers  the  oath  to  the  judge-advocate,  and 
authenticates  by  his  signature  all  acts,  orders,  and  proceedings  of  the  court  requiring  it. 
Manual  for  Courts  martial.  22,  par.  1. 

'  Dig.  .J.  A.  Gen.,  ()()9.  par.  3. 

'  Dig.  J.  A.  Geu.,  :!19,  par.  2.").  Tiie  authority  of  a  court-martial  to  punish  as  for  a 
contempt,  being  confined  by  tlie  code  (Art.  86)  to  cases  of  acts  of  menace  or  disorder 
committed  in  its  pre-ence,  such  a  court  would  not  be  empowered  to  punish,  as  being  in 
contempt,  a  witness  apin-aring  before  it  whose  attendance  it  had  been  necessary  to  compel 
by  process  of  attachment,     jbid..  759,  par.  3o. 

A  court  martial  has  lume  of  the  common-law  power  to  punish  for  contempt  vested  in 
the  ordinary  courts  of  justice,  but  only  sucli  authority  as  is  given  it  by  this  article. 
Thus,  held  th.nt  a  court  martial  would  not  be  authorized  to  punish,  as  for  a  contempt, 
under  this  Article  (or  otherwise),  a  civilian  witness  duly  summoned  and  appearing  before 
it,  but,  when  put  on  the  stand,  declining  (without  disorder)  to  testify.  Ibid.,  99,  par.  2. 
See,  also,  18  Opin.  Atty.-Geu.,  278. 


140  MILITARY  LAW. 

Procedure. — Where  a  contempt  within  the  description  of  this  Article  has 
been  committed  and  the  court  deems  it  proper  that  the  offender  shall  be 
punished,  the  proper  course  is  to  suspend  the  regular  business  and,  after 
t^iving  the  party  an  opportunity  to  be  heard  in  exi)lanation,'  to  proceed,  if 
the  explanation  is  insufficient,  to  impose  a  punishment,  resuming  tliereupon 
the  orio-inal  proceedings.  The  action  taken  is  properly  summary,  a  formal 
trial  not  being  called  for,  and  the  approval  of  the  reviewing  authority  is  not 
necessary  either  to  the  validity  of  the  sentence  or  as  a  condition  precedent 
to  its  execution;  the  punishment  imposed  by  the  court  being  carried  into 
effect  by  the  commanding  officer  of  the  post  or  place  at  which  the  trial  is  in 
progress.  Close  confinement  in  quarters  or  in  the  guard-house  during  the 
trial  of  the  pending  case,  or  forfeiture  of  a  reasonable  amount  of  pay,  has 
been  the  more  usual  punishment.  Instead  of  proceeding  against  a  military 
person  for  a  contempt  in  the  mode  contemplated  by  this  Article,  the  alterna- 
tive course  may  be  pursued  of  bringing  him  to  trial  before  a  new  court  on  a 
charge  for  a  disorder  under  Article  62.' 

THE    FINDING. 

The  arguments  or  statements  having  been  submitted  by  or  in  behalf  of 
the  prosecution  and  defense,  the  court  is  cleared  and  closed  for  deliberation 
and  finding.  Whenever,  during  the  progress  of  the  trial,  the  court  goes  into 
closed  session,  the  judge-advocate,  the  clerk,  the  reporter,  the  interpreter, 
and  all  other  officers  or  employees  of  the  court,  as  well  as  the  accused  and 
his  counsel,  and  the  spectators  and  bystanders  if  there  be  any,  withdraw 
from  its  presence.'  When  the  court  has  thus  been  cleared  and  closed,  it  is 
prepared  to  engage  in  deliberation  with  a  view  to  determine  the  guilt  or 
innocence  of  the  accused.  It  has  been  seen  that  in  such  collateral  issues  as 
may  arise  during  the  progress  of  a  court-martial  trial,  the  question  at  issue 
is  determined  by  a  mere  preponderance  of  evidence;  the  proof  required  to 
sustain  a  conviction,  however,  is  considerably  stronger  than  this,  and  a  find- 
ing adverse  to  an  accused  person  will  only  be  justified  when  the  court  is 
satisfied  of  his  guilt  beyond  a  reasonable  doubt. 

It  has  been  seen  that  it  is  the  function  of  the  jury  in  a  criminal  trial 
to  determine  the  weight  that  is  to  be  attached  to  the  testimony  submitted 

'  See  General  Court-martial  Orders,  No.  37,  Fourth  Military  District,  1868. 

5  IMd.,  99.  par.  :i  Compare  Samuel,  034:  Simumus,  t^  434.  The  latter  course  has 
not  iiifrequc-ntiy  been  adopted  in  our  practice. 

*  It  sometimes  liai)pens,  in  the  trial  of  iuiportaut  cases,  that  the  .sessions  of  the  court 
are  h<-lii  in  a  room  capable  of  accommodating  a  larire  number  of  spectators,  in  which  event 
it  may  not  be  desirable  to  require  the  spectators  to  withdraw  whenever  the  court  is  clo.sed 
for  deliberation.  In  such  cases,  if  there  be  a  suital)lc  room,  convenient  to  that  used  for 
the  trial,  the  court  itself  may  withdraw  for  the  i)urpose  of  deliberation,  returning  to  the 
court-room  when  its  deliberations  liave  been  concluded.  The  rf^cord  in  such  case  sliould 
show  that  the  court  "withdrew  for  deliberation,"  and  on  its  couclusion  that  the  court 
"returned  to  the  court-room,"  etc. 


THE  IS  CI  DENTS   OF  HIE  TRIAL.  Ul 

by  either  side,  and  also  to  determine  the  credibility  of  each  of  the  witnesses.' 
As  this  duty  falls  upon  the  members  in  a  trial  by  court-martial,  it  becomes 
necessary  for  them  to  ascertain,  first.,  what  is  alleged  against  the  accused, 
and,  second,  whether  the  allegations  contained  in  the  charges  and  specifica- 
tions have  been  proved  beyond  a  reasonable  doubt.  These  ends  will  be 
attained  hy  reading  over  the  several  charges  and  specifications  in  connection 
with  the  evidence  adduced  in  their  support  or  denial.  For  this  purpose  the 
testimony  on  both  sides  may  be  read,  and,  after  full  discussion  of  the  ques- 
tions of  law  and  fact  involved,  having  assigned  to  each  piece  of  testimony 
its  true  evidential  value,  the  court  is  prepared  to  determine  whether,  as  to 
each  charge  and  specification,  the  act  or  omission  cliarged  has  been  proved 
witli  the  degree  of  strictness  that  the  law  requires. 

Reasonable  Doubt. — The  proof  submitted  in  a  court-martial  trial  must 
exclude  reasonable  doul)t,  but  not  of  necessity  all  doubt.  "  A  reu-^onabh 
doubt  is  an  honest,  substantial  misgiving  generated  by  the  insufficiency  of 
the  proof;  not  a  doubt  suggested  by  tlie  ingenuity  of  the  counsel  or  jury, 
unwarranted  by  the  testimony,  nor  born  of  a  merciful  inclination  to  permit 
the  defendant  to  escape,  nor  prompted  by  sympathy  for  him  or  those  con- 
nected with  him;'  it  is  not  a  fanciful  conjecture  which  an  imaginative  man 
may  conjure  up,  but  a  doubt  which  reasonably  flows  from  the  evidence  or 
want  of  evidence;  a  doubt  for  which  a  sensible  man  could  give  a  good  reason, 
which  reason  must  be  based  upon  the  evidence  or  want  of  evidence;  such 
a  doubt  as  a  sensil)le  man  would  act  upon  in  his  own  concerns."  ^ 

Voting. — Having  maturely  considered  the  evidence  adduced  in  connec- 
tion with  the  arguments  or  statements  submitted  in  behalf  of  the  prosecu- 
tion and  defense,  the  court  is  ready  to  pass  upon  the  question  of  guilt  or 
innocence.  In  voting,  the  95th  Article  requires  that  the  "youngest  in 
commission"  shall  vote  first,  and  the  votes  are  therefore  taken  in  the  inverse 
order  of  rank.  The  charges  and  specifications  are  voted  upon  in  the  same 
order  which  was  followed  in  pleading,  the  first  specification  to  the  first 
charge  being  passed  upon,  then  the  second,  third,  etc.,  in  order,  followed 

'  In  a  case  where  the  evidence  is  conflictintr,  it  is  an  important  part  of  tbe  judgment 
of  the  court  to  (ietciiiiine  llie  measure  of  tlie  credibility  to  be  attached  to  the  sevenil  wit- 
nesses. In  its  lindimr,  tlierefore,  the  court  may.  in  conneciion  with  tlie  testimouy, 
properly  take  into  consideration  llie  appearance  and  deporinicnt  of  the  witnesses  on  the 
stand,  an(i  tiieir  manner  of  testifyin<r  especially  when  under  cros-^-examination.  Disr. 
.1.  A.  Gen.,  41'3,  par.  14.  See,  also,  the  chaiUer  entitled  TiiK  Reviewing  Aituokitv, 
and  compare  Callanan  rs.  Hhaw    24  Iowa.  441. 

That  a  court  c.mnot  arbitrarily  disljclieve  and  reject  from  consideration  the  state- 
met,  duly  in  evidence,  of  a  witness  not  clearly  shown  to  have  i)erjure(l  himself  is  held 
in  the  recent  case  of  Evans  vs.  George.  80  111.  51.  See,  also,  the  article  Credibility  of 
Witne.<ise.s  in  the  chapter  entitled  Evidence. 

"■  U.  S.  vs.  Harper,  'i?,  Fed.  Rep..  471. 

»  Hopt  vs.  People.  120  U.  S.,  430;  U.  S.  rs.  Jones,  31  Fed.  Rep.,  718;  U.  S.  ts. 
Meaglier.  37  Ihiil..  875;  U.  S.  vs.  IIuL'hes,  34  id..  732;  V.  S.  vs.  Zes  Cloya,  35  id., 
493  TU  S.  vs.  McKenzie  id.,  826;  U.  S.  vs.  King,  34  ibid.,  302;  U.  S.  m." Means  42 
ibid. ,  599. 


142  MILITARY   LAW. 

bv  a  vote  upon  the  charge  itself;  the  other  charges  are  voted  upon  in  the 
same  manner.  A  majority  vote  determines  the  question  of  guilt  or  inno- 
cence in  every  case,  anything  less  than  a  majority  being  insufficient  for  such 
purpose;  hence  a  tie  vote  is  in  substance  a  finding  of  not  proven,  which  in 
law  is  equivalent  to  an  acquittal.' 

Basis  of  Finding:. — It  has  been  seen  that  each  member  of  a  court-martial 
is  required,  by  the  obligation  of  his  oath,  to  "  well  and  truly  try  and  deter- 
mine''  the  matter  at  issue  "according  to  evidence,"  The  tiuding  of  the 
court,  therefore,  should  be  governed  by  the  evidence,  considered  in  connec- 
tion with  the  plea.  Where  no  evidence  is  introduced,  the  general  rule  is 
that  the  finding  should  conform  to  the  plea.' 

There  should  be  a  separate  and  independent  finding  upon  each  charge 
and  specification,  and  each  separate  finding  should  cover  tlie  charge  or 
apecification  as  to  which  it  is  made;  so  that  if  any  charge  or  specification  is 
deemed  by  the  court  to  be  proved  only  in  part,  the  finding  shall  show  specifi- 
cally what  is  found  to  be  proved  and  what  not.' 

The  finding  on  the  charge  should  be  supported  by  the  finding  on  the 
specification  (or  specifications),  and  the  two  findings  should  be  consistent 
with  each  other.  A  finding  of  guilty  on  the  charge  would  be  quite  incon- 
sistent w^th  a  finding  of  not  guilty,  or  guilty  without  attaching  criminality, 
on  tlie  specification^  So  a  finding  of  guilty  upon  a  well-pleaded  specifica- 
tion, apposite  to  the  charge,  followed  by  a  finding  of  not  guilty  either  of  the 
offense  charged  or  some  lesser  offense  included  in  it,  would  be  an-  incon- 
gruous verdict.  Xo  matter  how  many  specifications  there  may  be,  it 
requires  a  finding  of  guilty  or  not  guilty  on  but  one  specification  (apposite 
to  the  charge)  to  support  a  similar  finding  upon  the  charge.* 

Exceptions  and  Substitutions. — It  is  a  peculiarity  of  the  finding  at  mili- 
tary law  that  a  court-martial,  where  of  opinion  that  any  portion  of  the 
allegations  in  a  specification  is  not  proved,  is  authorized  to  find  the  accused 
guilty  of  a  part  of  a  specification  only,  excepting  the  remainder;  or,  in 
finding  him  guilty  of  the  wliole  (or  any  part),  to  substitute  correct  words  or 
allegations  in  the  place  of  such  as  are  shown  by  the  evidence  to  have  been 
inserted  through  error.     And  provided  the  exceptions  or  substitutions  leave 

'  Where,  upon  the  fuuling,  the  vote  on  a  charire  or  specification  is  tied,  the  accused 
is  ill  I.iw  found  not  guilty  thereon  ;  a  majority  vote  being  necessary  to  any  conviction. 
A  9t;itenient  in  the  record  to  the  effect  tiiat  the  vote  upon  a  specitication,  etc.,  was  a  tie 
and  that  the  accused  was  therefore  acquitted  is  of  course  irregular  and  improper.  Dig. 
J.  A.  Gen.,  412,  par.  13. 

'■  Ihid.,  408,  par.  1. 

'  Ibid.,  par.  ?>. 

*  Ihid.,  par.  2.  Where  there  is  but  one  specification,  it  is  not  competent  for  a  court- 
martial  to  find  an  accused  not  guilty  of  the  specification  and  yet  guilty  of  the  charge. 
By  finding  him  not  guilty  of  tlie  specification  they  acquit  him  of  all  that  goes  to  con- 
stitute the  ofTense  described  in  the  ciiarge.  Where  the  court  believe  that  the  accused  is 
guilty  of  the  charge  but  not  precisely  as  laid  in  the  specification,  they  should  find  him 
guilty  of  the  latter,  but  with  such  exceptions  or  substitutions  as  may  be  necessary  to 
present  the  facts  as  prove  1  on  the  trial,  and  then  guilty  of  the  charge.    Ibid.,  409,  par.  5. 


THE  INCIDENTS  OF  THE  TRIAL.  14:3 

the  specification  still  appropriate  to  the  charge  aud  legally  sufficient  there- 
under, the  court  may  then  properly  find  the  accused  guilty  of  the  charge  in 
the  usual  manner.' 

Familiar  instances  of  the  exercise  of  the  authority  to  except  and  substi- 
tute in  a  finding  of  guilty  occur  in  cases  where,  in  the  specification,  the 
name  or  rank  of  the  accused  or  some  other  person  is  erroneously  designated, 
or  there  is  an  erroneous  averment  of  time  or  j)lace,  or  a  mistaken  date,  or  an 
incorrect  statement  as  to  amount,  quantity,  quality,  or  other  particular,  of 
funds  or  other  property,  etc.* 

In  finding  guilty  upon  a  specification,  to  except  from  such  finding  the 
word  or  words  which  express  the  gravamen  of  the  act  as  charged  and  found 
is  contradictory  and  irregular;  as,  for  example,  from  a  finding  of  guilty  on 
a  specification  to  a  cliarge  of  fraud  under  Art.  60,  to  specially  except  the 
word  "fraudulent"  or  "fraudulently,"  while  at  the  same  time  finding 
the  accused  guilty  generally  upon  the  charge.' 

"  Dig.  J.  A.  Geu..  409,  par.  4. 

*  Ibid.,  pur.  6.  The  practice  of  making  exceptions  and  substitutions  in  the  findings 
is  well  illustrated  by  the  tinding,  authorized  at  military  law  wlien  calletl  for  by  the 
evidence,  of  a  lesser  kindred  offense  included  as  a  constituent  element  in  the  .specific 
offense  charged.  Of  this  form  of  verdict  the  most  familiar  instance  is  the  finding  of 
guilty  of  absence  without  leave  under  a  charge  of  desertion.  A  full  acquittal  of  deser- 
tion includes,  of  course,  an  absL'nce  without  leave  involved  in  it ;  but  where  the  evitience 
falls  short  of  establishing  a  desertion  but  shows  an  unauthorizetl  absenting  of  himself 
by  the  accused,  he  may  and  should  be  convicted  of  absence  without  leave  as  his  ac'ual 
offense.  In  arriving  at  this  conclusion,  the  findings  on  the  specification  and  ciiarge 
should  be  consistent,  and  the  finding  on  the  former  should  be  such  as  to  support  the 
latter.  In  their  finding  of  guilty  upon  the  specification,  the  court  should  in  terms  except 
from  its  application  such  words  of  the  specification  as  allege  or  describe  desertion 
exclusively,  and  substitute  words  describing  the  lesser  offense  ;  the  words  "did  desert," 
for  e.vample,  being  excepted,  and  the  words  "did  absent  himself  without  authority" 
being  sub.stituted.  The  finding  on  the  charge  should  regularly  be  "not  guilty,  but 
guilty  of  absence  without  leave."  Ihid.,  410,  par.  8.  A  simple  finding,  however,  of 
guilty  of  absence  without  leave,  though  an  irregular  form,  would  amount  in  law  to  an 
acquittal  of  the  higher  offense  charged.     Compare  Morchcad  cs.  State,  34  Ohio  St.,  212. 

'  Dig.  J.  A.  Gen.,  409,  par.  7.  But  the  authority  to  find  guilt}'  of  a  minor  included 
offense,  or  otherwise  to  make  exceptions  or  substitutions  in  the  finding,  cannot  justify 
the  conviction  of  the  accused  of  an  ofifense  entirely  separate  and  distinct  in  its  nature 
from  that  charged.  Thus  Iield  that  it  was  not  a  finding  of  a  lesser  included  ofTen.se  to 
find  the  accused  guilty  merely  of  absence  without  leave  under  a  charge  of  a  violation  of 
the  42d  Article  of  War  in  abandoning  his  post  before  the  enemy.  And  so  held  of  a 
finding,  under  a  clianie  of  a  violation  of  Article  39,  of  not  iruilty,  but  guilty  of  a  viola- 
tion of  Article  40.  So  where  a  soldier  charged  with  "  conduct  to  the  prejudice  of  good 
order  and  military  discipline,"  in  concealing  the  fact  that  a  fellow  soldier  had  appro- 
priated to  his  own  use  certain  public  property,  was  fouiul  not  guilty  of  the  specification 
as  laid,  but  guilty  of  "having  stolen  the  jiroperty  himself,"  and  guilty  of  the  charge, 
and  was  accordingly  sentenced  to  imprisonment,  held  that  such  a  finding  was  mani- 
festly unauthorized.  Having  been  found  not  guilty  of  the  offense  set  fortli  in  the  sjK-ci- 
lication  and  which  alone  he  was  called  upon  to  answer,  he  should  have  been  acquitted 
on  both  charge  and  specification  :  the  offense  of  which  he  was  found  guilty  was  not 
alleged  against  him,  and  not  being  included  in  that  charged  could  not  properly  form 
the  subject  of  a  finding.  The  remission  of  h\s  seutence  therefore  recommended.  Ibid., 
410.  par.  9. 

In  a  case  where  a  court-martial  made  such  exceptions  and  substitutions  in  its  finding 
upon  the  sjiecification  to  a  charge  of  "  forgery  to  tiie  prejudice  of  good  order  and  mili- 
tary discipline  "  as  to  negative  the  material  allegation  of  false  writing  and  leave  no  legal 
basis  for  the  finding  arrived  at  of  guiltv  of  tlie  charire,  adri.sed  that  the  findings  be 
disapproved  as  incongruous  and  insufficient  to  su-taiii  the  sentence.     Ibid.,  413,  par.  15. 


l-ti  MILITARY  LAW. 

Finding  as  to  a  Lesser  Kindred  or  Included  Offense.  — There  may  also  be 
a  finding  of  not  guilty  as  to  the  major  or  principal  otfense  charged,  and  a 
finding  of  guilty  of  a  lesser  kindred  and  included  oifense.'  "  Of  this  form 
of  verdict  the  most  familiar  instance  is  the  finding  of  guilty  of  absence 
without  leave  under  a  charge  of  desertion.  A  full  acquittal  of  desertion 
includes,  of  course,  an  absence  without  leave  involved  in  it;  but  vvliei'e  the 
evidence  falls  short  of  establishing  a  desertion  but  shows  an  unauthorized 
absenting  of  himself  by  the  accused,  he  may  and  should  be  convicted  of 
absence  without  leave  as  his  actual  offense." 

But  the  authority  to  find  guilty  of  a  minor  included  offense,  or  otherwise 
to  make  exceptions  or  substitutions  in  the  finding,  cannot  justify  the  con- 
viction of  the  accused  of  an  offense  entirely  separate  and  distinct  in  its 
nature  from  that  charged.' 

In  arriving  at  this  conclusion,  the  findings  on  the  specification  and  charge 
should  be  consistent,  and  the  finding  on  the  former  should  be  such  as  to 
support  the  latter.  \\\  their  finding  of  guilty  upon  a  specification  alleging 
desertion,  for  example,  tlie  court  should  in  terms  excejit  from  its  application 
such  words  of  the  specification  as  allege  or  describe  desertion  exclusively, 
and  substitute  words  describing  the  lesser  offense;  the  words  "  did  desert," 
for  example,  being  excepted,  and  the  words  "  did  absent  himself  without 
authority"  being  substituted.  The  finding  on  the  charge  should  then  be 
"  not  guilty,  but  guilty  of  absence  without  leave."  ' 

The  converse  of  the  proposition  above  stated  is  not  true,  and  a  conviction 
of  a  graver  or  more  serious  offense  in  lieu  of  that  charged  has  never  been 
sanctioned;  such  a  finding,  indeed,  would  constitute  a  departure  from  the 

'  The  practice  of  making  exceptions  and  substitutions  in  the  findings  is  well  illus- 
trated by  the  finding,  authorized  at  uiililary  law  when  called  for  by  the  evidence,  of  a 
lesner  kindred  offense  included  as  a  conslitutnt  element  in  the  specific  offense  charged. 
Dig.  J.  A.  Gen.,  410,  par.  8;  XIII  Opin.  Att.-Gen.,  460.  Compare  Reynolds  vs. 
People.  83  111.  479,  and  note  the  similar  authority  given  in  criminal  cases  in  the  United 
States  courts  by  Sec.  Wi't.  Rev.  Sts.     See,  also,  note  2,  p.  143  ante. 

■'  Dig.  .J.  A.  Gen..  410,  par.  8.  Held  that  a  finding,  under  a  charge  of  desertion,  of 
not  guilty  of  desertion  but  guilty  of  a  violation  of  the  40th  Article  of  War  was  not 
allowable  and  should  be  disapproved  ;  the  offense  made  punishable  by  that  Article — 
quitting  giiard,  etc.— not  necessarily  being  or  involving  an  absence  without  leave  in  the 
military  sense,  and  the  finding  not  being  necessarily  a  conviction  of  the  absence  without 
leave  contained  in  desertion.     Ibid.,  413,  i)ar.  16. 

3  Ihid.,  410,  par.  9. 

*  Ihid.,  par.  8.  The  authority  thus  to  find,  however,  has  not  been  extended  beyond 
Uie  case  indicated  in  the  last  paragraph  ;  the  reverse,  for  example,  of  this  form  of  find- 
ing has  never  been  sanctioned.  A  finding  of  guilty  of  a  certain  specific  offense  under  a 
charge  of  another  .specific  offense,  or  luidcr  a  charge  of  "  conduct  unbecoming  an  olBcer 
and  a  gentleman,"  or  of  "conduct  to  the  prejudice  of  good  order  and  military 
lii-cipline."  would  be  wholly  irregular  and  invalid.  Thus  a  finding  of  guilty  of  dis- 
obeilience  of  orders  (or  of  a  violation  of  Article  21 ),  under  acharge  of  mutiny  in  violation 
of  Article  22,  or  a  finding  of  drunkenness  on  duty  (or  of  a  violation  of  Article  38),  under  a 
charge  for  a  drunken  disorder  laid  imder  Article  62  o;-  61,  woidd  be  wholly  unauthorized. 
And,  if  such  a  finding  were  made,  it  could  scarcely  fail  to  be  formally  disapproved. 
And  so  of  a  fimiing  of  "conduct  unbecoming  an  officer  and  a  gentleman"  under  a 
chartre  of  "conduct  to  the  prejudice  of  good  order  and  military  discipline."  Ibid., 
411,  par.  11. 


THE  JM/DhMS   OF   TllK    I  RIAL.  liS 

fuuJamental  rule  of  iiiterpretutioii  of  criniinal  statutes;  i'.'-.,  tliat  they  are 
to  be  construed  liberally  as  to  those  parts  which  are  in  favor  of  the  accused, 
and  strictly  as  to  those  clauses  which  are  ai^aiiist  him.' 

Finding  under  61st  and  62d  Articles  of  War. — It  is  a  further  peculiarity 
of  the  liuding  at  niililary  law  that  where  an  accused  is  charged  with  "  con- 
duct unbecoming  an  ollicer  and  a  gentleman,"  or  with  any  specific  offense 
made  punishable  by  the  Articles  of  War,  and  the  court  is  of  opinion  that 
while  the  material  allegations  in  the  specification  or  specifications  are  sub- 
stantially made  out  they  do  not  fully  sustain  the  charge  as  laid,  but  do 
clearly  establish  the  commission  of  a  neglect  of  military  duty  or  a  disorder 
in  breach  of  military  discipline,  as  involved  in  the  acts  alleged,  the  accused 
may  properly  be  found  guilty  of  the  specification  (or  specifications),  and  not 
guilty  of  the  charge  but  guilty  of  "  conduct  to  the  prejudice  of  good  order 
and  military  discipline"  Siicli  a  form  of  finding  is  now  common  in  our 
j)ractice  (especially  where  the  cliarge  is  laid  under  Art.  »Jl),  and  its  legality 
is  no  longer  questioned.' 

Protests. —Where  the  majority  of  the  members  of  a  court-martial  liave 
come  to  a  decision  u>)on  any  question  raised  in  the  course  of  the  proceedings, 
or  upon  the  finding  or  sentence,  no  individual  of  tlie  minority,  whether  the 
j)resident  or  other  member,  is  entitled  to  have  a  protext  made  by  himself 
against  such  decision  entered  upon  the  record.  The  conclusions  of  the  court 
(except  in  cases  of  death-sentences,  where  a  concurrence  of  two  thirds  is 
required)  are  to  be  determined  invariably  by  the  vote  of  the  majority  of  its 
members,  and  it  is  much  less  important  that  individual  members  should 
have  an  opportunity  of  publishing  their  personal  convictions  than  that  the 
action  of  the  court  should  appear  upon  the  formal  record  as  that  of  tlie 
aggregate  body,  and  shouhl  carry  weight  and  have  effect  as  su(;h.  Xor  can 
a  protest  (against  the  finding  or  otherwise)  by  a  minority  of  the  members 
be  appended  to  the  record  on  a  separate  paper.' 

Acquittals. — It  has  been  seen  that,  in  order  to  convict,  the  evidence 
sliould  be  such  as  to  satisfy  the  court  of  the  guilt  of  the  accused  "  beyond  a 
reasonable  doubt."    If,  therefore,  sucli  reasonable  doubt  exists,  it  must  find 


'  Dig.  J.  A.  Geu..  411.  par.  11. 

•  Ibid.,  par.  10.  The  geiicnil  tiiidiug  of  "conduct  to  the  prejudice,"  etc  ,  in  the 
cusies  indicated  in  the  paragraph  above  cited,  i-<  sanctioned  in  order  to  prevent  a 
failure  of  justice,  not  for  the  purpose  of  relieving  the  accused  of  any  of  his  due 
siiare  of  culpabilily.  It  should  not,  therefore,  he  resorted  to  where  the  specihc  oU'ense 
charged  i>  substantially  made  out  by  the  testimony.  Thus  in  a  case  where  tlie  facts 
set  forth  in  tlie  specitic:alion  to  a  charge  of  "coiuluct  unbecoming  an  ollicer  and  a 
gentleman,"  and  clearly  established  by  the  evidence,  fixed  luimisiakably  upon  the 
accused  dishonorable  behavior  compromising  him  othcially  and  socially,  held  thai  a  lind- 
ing  by  the  couit  that  he  was  guilty  only  of  '•conduct  to  the  prejudice  of  good  order  and 
military  discipline"  should  not  be  accepted,  but  tlcit  the  court  siiould  be  reconvened  for 
the  purpose  of  inilucin^,  if  practicable,  a  finding  in  accordance  with  the  facts  and  with 
justice.     Ibid..  W'i.  par.  Vi  :  see  also  ihid..  411,  par.  11. 

*  Dig.  J.  A.  Gea.,  619.     See  also  Simmons,  g  469 ;  Hough  (Precedeuts),  703,  note  4. 


146  MILITARY  LAW. 

expression  in  a  finding  of  "  not  guilty  "  as  to  the  specification  in  respect  to 
which  the  doubt  exists,  and  the  accused  is  entitled  to  an  acquittal.  The 
same  conclusion  is  reached  where  there  is  a  tie  vote/  or  where  a  sentence  is 
not  supported  by  the  majority  which  is  expressly  required  to  support  a  con- 
Tiction  in  respect  to  certain  Articles  of  War.' 

Forms  of  Acquittal. — An  acquittal,  in  the  above  cases,  is  an  inevitable 
consequence  of  the  finding  of  "  not  guilty,"  and  is  entered  upon  the  record 

in  the  following  form:  "and   the  court    does  therefore  acquit  him, 

^  B, th  Regiment  of  Infantry."     Where  the  accused  is  a  commissioned 

officer  and  the  circumstances,  as  set  forth  in  the  evidence,  are  such  as  to 
justify  the  conduct  which  has  been  made  the  subject  of  inquiry  or  to  nega- 
tive completely  the  theory  of  guilt,  a  form  of  acquittal  is  sometimes  agreed 
to  in  the  following  form:  "  and  the  court  does  therefore  fully  "  or  "  honor- 
ably acquit  him,"  etc.,  or  "fully  and  honorably  acquit."  Such  a  con- 
clusion is  warranted  where  the  effect  of  conviction  would  have  been  to 
cast  a  stigma  upon  the  personal  or  professional  character  of  the  accused. 
As  charges  are  now  required  to  be  carefully  investigated  prior  to  their  refer- 
ence to  courts-martial  for  trial,  additions  of  the  kind  above  mentioned  have 
become  less  frequent  than  was  formerly  the  case.' 

Remarks  in  Connection  with  Findings  and  Sentences. — It  is  a  well- 
established  principle  of  court-martial  procedure  that  a  court  may,  in  a 
proper  case,  make  additions  to  its  finding  in  the  form  of  remarks  or  animad- 
versions upon  the  conduct  of  parties  or  witnesses,  or  the  motives  which 
have  actuated  conduct  in  particular  cases.  "  Courts-martial,  in  acquitting, 
have  sometimes  remarked  in  very  strong  terms  of  disapprobation  on  the 
conduct  of  the  prosecutor,  and  in  reprehension  of  occurrences  prejudicial 
to  discipline  which  have  appeared  in  their  records.  They  have  also  de- 
clared charges  to  be  frivolous,  vexatious,  and  groundless,  and  sometimes 
malicious,  and  not  originating  in  a  desire  to  promote  the  good  of  the  service, 
but  proceeding  from  warmth  of  temper  or  ignorance,  or  from  insubordina- 
tion, or  personal  animosity  to  the  accused,  and  from  resentment,  revenge, 
conspiracy,  or  other  improper  motives.  So,  on  the  other  hand,  courts  have 
frequently  declared  that,  in  their  opinion,  the  prosecutor  was  actuated  by 
yjo  illiberal  or  improper  motives,  but  from  a  sense  of  duty  and  regard  for  the 
oenefit  of  the  service,  or  that  his  conduct  has  been  laudable  and  honorable 
or  regular  and  impartial;  such  remarks  by  the  court  have  generally  been 
produced  by  assertions  or  insinuations  of  the  prisoner,  not  supported  by  evi- 


'  A  tie  vote  upon  any  propositiftn  submitted  to  the  court  is  ecjuivalent  to  a  vote  in  the 
negative, — a  majority  vote  being  necessary  to  a  determination  in  the  affirmative, — and 
the  proposition  is  not  approved.  "Where  the  vote  is  a  tie  upon  an  objection  to  testimony, 
the  ot)iection  is  not  sustained  Where  it  is  tied  upon  a  eerhiin  proposed  finding  or  form 
of  sentence,  the  same  is  not  adopted.     Die   J.  A.  Gen..  747. 

''  See  96th  Artiele  of  War.     See,  also,  Dig.  J.  A.  Gen.,  112,  par.  1. 

»  Simmons,  g  700. 


THE  IXCIDENTS   OF  THE  TRIAL.  147 

dence;  and  have  occasionally  accompanied  an  acquittal,   at  other  times  a 
conviction.' 

In  submitting  snch  remarks  or  additions  to  its  finding,  the  court  should 
bear  in  mind  the  well-defined  limits  which  divide  tiie  functions  of  the  court- 
martial  from  those  of  the  reviewing  otticer.  The  officer  appointing  the  court 
is  responsible  for  the  maintenance  of  discipline  in  the  command;  the  func- 
tions of  a  court-martial  being  restricted  to  the  trial  of  the  particular  case 
before  it.  Its  animadversions,  therefore,  should  be  rigidly  limited  to  matters 
disclosed  by  the  evidence  submitted  in  the  course  of  the  trial,  ami  should 
relate  to  parties  thereto,  to  witnesses  who  have  testified,  or  to  persons  whose 
conduct  or  motives  have  been  made  the  subject  of  inquiry.  For  the  same 
reason  the  animadversions,  if  made,  should  be  specific  in  character  and  not 
general;  conduct  not  suflficiently  marked  or  decided  to  be  susceptible  of 
characterization  ought  not  to  be  made  the  subject  of  either  comment  or 
stricture. 

PREVIOUS   CONVICTION'S. 

Procedure. — "  In  every  case  where  evidence  of  previous  convictions'  is 
admissible,  and  the  accused  is  convicted  of  the  offense,  the  courts  after 
determining  its  findings  and  before  awarding  sentence,  will  be  opened  for 
the  purpose  of  ascertaining  whether  there  be  such  evidence  and,  if  so,  of 
hearing  it."  '  The  judge-advocate  and  the  accused  and  his  counsel  return 
to  the  presence  of  the  court,  and  the  former  submits  such  evidence  of  previous 
convictions  as  have  been  referred  to  the  court  by  the  proper  convening 
authority.*  In  presenting  such  evidence  the  rules  regulating  the  presenta- 
tion of  documentary  testimony  are  applied  by  the  court. 

'  The  remarking  by  the  court,  in  connection  with  the  tindins:  or  sentence,  unfavor- 
ably upon  an  officer  or  soldier  (other  than  the  accused)  wiiose  conduct  is  exliibited  by 
the  tesiiinouy.  or  upon  an  act  or  practice  deemed  proper  to  be  noted  in  the  interests  of 
military  discipline,  though  now  comparatively  unusual,  is  sanctioned  by  the  authorities 
as  periiiissihle  and  regular  in  a  proper  case.  Dig.  J.  A.  Gen.,  318,  par.  26.  See.  also, 
Simmons,  §§  699-707:  Kennedy,  196-7;  DeHarl.  182-;];  OBrieii,  268.  In  Jekyll  vs. 
Moore,  2  Bos.  it  Pid.,  341,  the  expression  of  opinion  by  a  court-niarlial,  in  acquitting  an 
accused,  tliat  tlie  pro.secutiou  had  been  actuated  by  malice  was  held  not  to  constitute  a 
libel. 

*  By  "  previous  conviction  "  is  meant  a  conviction  where  the  sentence  has  been 
approved  by  competent  authority.  This  refers  to  all  trials  except  where  the  post  com- 
mander sits  as  a  summary  court,  when  no  approval  of  the  sentence  is  required  by  law. 
For  instructions  as  to  when  evidence  of  previous  convictions  must  be  submitted  with 
charges  see  page  19.  note  1;  and  for  instructions  to  summary  courts  regarding  previous 
convicuons,  see  Manual  for  Courts-martial,  page  78. 

^  Manual  for  Courts-martial,  49,  par.  1.  See  par.  929,  A.  R.,  189o,  and  Manual  for 
Cotirts-martial,  p.  60,  par.  2. 

■•  Held  that  the  reopening  of  the  court,  after  a  conviction,  to  receive  evidence  of 
previous  convictions  was  not  a  violation  of  the  84lh  Article  of  War.  The  procedure 
was  designed  to  carry  out  the  si)irit  of  the  legislation  which  e.vcliided  judge-ailvocates 
fnnn  closed  sessions — to  place  pro.se(Miiion  and  defense  on  a  more  eipial  fooling,  by 
allowing  the  accused  to  be  present  when  evidence  of  jirevious  convictions  is  submitted 
and  to  scrutinize  the  same  and  test  their  legality.     Dig.  J.  A.  Gen.,  609,  par.  1. 

A  court-martial  refused  to  take  into  consideration  evidence  of  previous  convictions 


148  MILITARY  LAW. 

Proof  of  Previous  Convictions. — Previous  convictions  by  conrts-martial 

other  tlnm  tlie  summary  court  are  proved  by  the  records  of  the  trials  or  by 
duly  authenticated  orders  promulgating  them.'  The  proper  evidence  of 
I)revious  convictions  by  summary  court  is  the  copy  of  a  summary-court  record 
furnished  to  company  and  other  commanders,  as  required  by  paragraph  932, 
Army  Regulations  of  1895,  or  one  furnished  for  the  purpose  and  certified  to 
be  a  true  copy  by  the  post  commander  or  adjutant.^ 

The  previous  convictions  are  not  limited  to  those  for  offenses  similar  to 
the  one  for  which  the  accused  is  on  trial.  The  object  is  "  to  see  if  the 
prisoner  is  an  old  offender,  and  therefore  less  entitled  to  leniency  than  if  on 
trial  for  his  first  offense."  This  information  might  not  be  fully  obtained  if 
evidence  of  previous  convictions  of  similar  offenses  only  were  laid  before  the 
court.  It  has  no  bearing  upon  the  question  of  guilt  of  the  particular  charge 
on  trial,  but  only  upon  the  amount  and  kind  of  punishment  to  be  awarded,' 
and  to  this  end  it  is  proper  that  all  previous  convictions  should  be  known. 
As  the  accused  is  not  on  trial  for  the  offenses  evidence  of  the  previous  con- 
victions of  which  it  is  proposed  to  introduce,  the  103d  Article  of  War  does 
not  apply." 

THE    SENTENCE. 

Mandatory  and  Discretionary  Sentences. — A  finding  having  been 
reached,  and  the  evidence  of  previous  convictions,  if  any  such  there  be, 

offered  by  the  judge-advocate,  ou  the  grounds,  first,  that  accused  had  been  previously 
punished  for  each  offense;  second,  that  he  had  not  introduced  any  testimony  in  support 
of  his  character,  and,  in  the  absence  of  such  testimony,  tlie  rules  of  evidence  preclude 
attacking  the  same.  Held  that  such  objections  were  not  well  taken.  Dig.  J.  A.  Gen., 
610.  par.  2. 

'  If  the  order  of  publication  does  not  show  the  actual  oflfense,  as  by  not  setting  forth 
the  specifications,  the  original  proceedings  {i.e.,  the  original  or  a  duly  certified  copy) 
shoiild  be  put  in  evidence.  A  memorandum  of  the  previoiis  convictions  is  not 
sufficient;  they  must  be  shown  either  by  the  records  of  the  trials  or  by  duly  authen- 
ticated copies  of  the  orders  of  promulgation.  It  is  unauthorized  for  the  judge-advocate 
to  introduce,  or  the  court  to  admit,  as  evidence  of  previous  convictions  (or  in  connection 
with  proper  evidence  of  the  same),  the  statement  of  service,  etc.,  required  by  par.  927, 
A.  R.  of  1895,  to  be  furnished  to  the  convening  authority  with  the  charge.  Dig.  J.  A. 
Gen.,  610,  par.  3.     See  Cite.  13,  H.  Q.  A.,  1890. 

Previous  convictions,  except  of  desertion  on  a  trial  for  desertion,  not  adjudged 
during  the  current  pending  enlistment  of  the  soldier,  but  incurred  during  a  jirior  enlist- 
ment, are  not  admissible.     Ibid.,  610,  par.  5. 

Evidence  of  a  previous  conviction  is  not  admissible  where  the  findings  were  dis- 
approved by  the  proper  reviewing  authority.  As  to  all  trials  (except  those  liad  by  a 
summary  court  where  the  post  commander  acts  as  the  court,  and  no  ajiproval  of  the 
sentence  is  required  by  law),  the  term  "previous  conviction,"  as  employed  in  G.  O.  21 
of  1891  means  a  conviction  to  which  effect  has  been  given  by  tlie  ai)i)roval  of  the 
sentence  by  competent  authority.  Ibid.,  611,  par.  7.  See  Circ.  10,  H.  Q.  A.,  1893,  and 
note  2,  paL'e  147,  ante. 

Evidence  of  a  previous  conviction  by  a  civil  court  is  not  admissible  in  this  procedure. 
Dig.  J.  A.  Gen.,  611,  par.  6. 

'  Paragraph  929,  Army  Regulations  of  1895. 

*  For  effect  upon  amount  of  punisliment,  see  Manual  for  Courts-raartial,  p.  59,  sec. 
1.   See,  also,  par.  1,  nupra. 

*  Manual  for  (Jourts-martlal,  49,  par.  3.  This  rule  is  not  changed  by  the  order  of  the 
President  prescribing  the  limits  of  punishment. 


THE  INCIDENTS  OF  THE   TRIAL.  149 

having  been  submitted,  the  court  is  again  cleared  and  closed  to  enable  tlie 
court  to  vote  upon  an  appropriate  sentence.  Sentences  are  either  mandatory 
or  discretionary,  A  laandatory  sentence  is  one  determined,  in  kind  and 
amount,  by  the  express  terms  of  a  statute,  and  which  must  be  imposed  by 
the  court  as  an  inevitable  consequence  of  conviction  of  the  offense  to  which  it 
is  attached  by  law.  For  such  offense,  indeed,  no  other  sentence  may  lawfully 
be  imposed.  A  discrefionary  sentence  is  one  in  which  an  api)ropriate 
punishment  is  determined  by  the  court,  having  in  view  the  interests  of 
discipline,  the  character  of  the  offense,  and  the  evidence  submitted  in  proof 
of  its  commission. 

Between  the  two  classes  of  sentences  above  described  lies  a  group  of 
sentences  in  which  the  discretion  of  the  court  in  imposing  them  is  to  some 
extent  restricted,  being  exercised  within  certain  limits  established  by  the 
President  in  pursuance  of  the  authority  conferred  by  tlie  Act  of  September 
27,  1890.'  The  limitations  of  punishment  so  authorized  have  been  fixed  by 
the  President  in  respect  to  a  number  of  military  offenses,  and  have  been 
published  to  the  Army  in  suitable  PLxecutive  Orders,'  and,  as  so  establislied, 
must  be  strictly  observed  by  all  military  tribunals  in  determining  upon  the 
kind  and  amount  of  punishment  imposed  for  the  specific  offenses  therein 
enumerated. 

Voting  upon  the  Sentence. — Upon  a  conviction  by  a  majority  vote  of  the 
court,  all  the  members  of  the  court,  those  who  voted  for  an  acquittal  equally 
with  those  who  voted  for  conviction,  must  vote  for  some  sentence.  This 
though  formerly  doubted,  has  long  been  established  as  a  principle  in  our 
military  law.  "While  a  member  who  voted  for  an  acquittal  cannot  of  course 
be  compelled  to  vote  a  punishment,  yet  his  persistent  refusal  to  do  so  would 
be  a  neglect  of  duty,  rendering  him  amenable  to  a  charge  under  Art.  62.* 
The  order  of  voting  is  the  same  as  that  pursued  in  reaching  a  finding,  in 
inverse  order  of  rank. 

If  the  punishment  attached  to  the  offense  be  mandatory,  such  sentence 
must  be  imposed,  upon  conviction,  as  the  sentence  of  the  court.  If  the 
sentence  be  wholly  or  in  part  discretionary,  the  obligation  to  vote  remains 
nnchanged;  the  term  "  to  vote"  as  here  used,  especially  when  construed  in 
connection  with  the  member's  oath  and  the  existing  custom  of  service, 
implies  an  obligation  on  the  part  of  each  member  to  formulate  and  submit 
a  sentence  imposing  such  punishment  as,  in  his  opinion,  is  aiU'quate  to  the 
offense  cliarged. 

The  approved  practice  of  military  courts  in  determining  upon  their 
sentences  is  believed  to  be  as  follows:  Each  member  writes  a  sentence  and 
deposits  it  with  the  president,  and  (no  sentence  having  been  adopted  by  a 

'  26  Stat,  at  Large,  491.  See.  also,  ihe  Act,  of  October  1,  1890  (26  Stat,  at  Large,  648). 
»  See  Executive  Orders  of  PYbruury  26.  1891.  and  March  20,  1895,  the  latter  of  whicli 
is  uow  in  force. 

»  Dig.  J.  A.  Gen.,  696,  par.  2. 


150  MILITARY  LAW. 

majority  of  votes)  tlie  court,  after  all  the  sentences  have  been  read  to  it 
by  the  president,  proceeds  to  vote  upon  tlieni  in  the  order  of  their  severity, 
beginning  with  the  least  severe,  until  some  one  of  those  proposed  is  agreed 
upon  by  a  majority  of  votes.  It  is  not  etssential,  however,  that  this  form  of 
voting  should  be  pursued — it  being  open  to  the  court,  in  its  discretion,  to 
adopt  a  different  one,' 

Where  the  Article  of  War  under  which  the  charge  is  laid  is  mandatory 
as  to  the  punishment,'  and  the  sentence  imposes,  in  connection  with  the 
mandatory  punishment,  a  further  penalty  or  penalties,  this  addition  to  the 
sentence  does  not  affect  its  legality  so  far  as  relates  to  the  mandatory  punish- 
ment: as  to  this  it  is  valid  and  operative,  though  as  to  the  rest  it  is  a  nullity.' 

In  a  case  where  its  sentence  is  entirely  discretionary,  a  court-martial  may 
impose  any  punishment  that  is  sanctioned  by  usage  (the  "  custom  of  the 
service"  referred  to  in  Art.  84),  although  (in  cases  of  soldiers)  the  same 
mav  not  be  included  in  the  list  of  the  more  usual  punishments  contained  in 
the  Manual  for  Courts-martial."  Where,  however,  the  discretion  of  the  court 
is  restricted  in  its  exercise  by  the  operation  of  the  Executive  order  imposing 
limits  upon  its  power  to  award  discretionary  punishments,  the  terms  of  such 
order  must  be  strictly  complied  with. 

Interpretation  of  Terms  used  in  Sentences. — "  3/on^7i,"  "  J/o;iM.5." — 
The  word  "  month  "  or  "  months,"  employed  in  a  sentence,  is  to  be  con- 
strued as  meaning  calendar  month  or  months;  the  same  significance  being 
given  to  the  term  as  is  now  commonly  given  to  it  in  the  construction  of 
American  statutes  in  which  the  word  is  employed.  The  old  doctrine  that 
*'  month  "  in  a  sentence  of  court-martial  meant  liDiar  month  has  long  since 
ceased  to  be  accepted  in  our  military  law.' 

''Day,''  ''  Da  i/s.''— The  term  "  day  "  or  "days,"  when  used  in  the 
order  of  the  President  imposing  limitations  upon  punishments,  has  reference 
to  a  day  of  twenty-four  hours,"  and  this  rule  applies  generally  to  tlie  use  of 
the  term  in  connection  with  a  term  of  imprisonment  or  confinement.  It  has 
been  held,  however,  that  the  term  "  days  "  in  a  sentence  of  a  regimental 
court  requiring  a  soldier  "  to  walk  four  days  with  a  loaded  knapsack,"  etc., 
did  not  include  nights,  and  should  not  be  considered  as  embracing  any  longer 


'  Diir.  J.  A.  Gen.,  691,  pjir.  1.  Where  a  sentence  may  or  should  be  composed  of 
more  than  one  of  the  authorized  forms  of  punishment,  as  of  confinement  and  forfeiture  of 
pay.  for  example,  the  court  =may,  by  appropriate  motions,  pass  informally  upon  the 
several  elements  of  wliich  the  sentence  may  be  composed  ;  this  question  having  been 
determined  by  a  majority  of  votes,  it  only  remains  to  fix  upon  the  amount  of  pay  to  be 
forfeited  and  the  term  of  confinement  to  be  imposed. 

"■  Such  punishments  are  required  by  Articles  G,  o,  13,  14,  15,  18,  26,  37,  38,  50,  57,  59, 
61,  and  65. 

2  D\<r.  ,J.  A.  Gen.,  696,  par.  3. 

*  Jbid..  697,  par.  6.  For  a  list  of  such  punishments,  see  Manual  for  Courts-mar- 
tial, p   50,  par.  ?,;  see,  also,  the  chapter,  post,  entitled  Punishments. 

^  Dii;.  J.  A.  Gen.,  699,  par.  13, 

« Ibid..  491,  par.  4. 


THE  lyCIDEyTS  OF  lEE  TRIAL.  lol 

period  of  the  twenty-four  hours  than  that  included  between  reveille  and 
retreat. 

Terms  Relating  to  Pay  and  Allowances. — As  will  presently  be  seen,  pay 
cannot  be  forfeited  (in  a  sentence)  by  implication.  If  the  court  intends 
to  forfeit  pay,  the  penalty  of  forfeiture  should  be  adjudged  in  express  terms 
in  the  sentence.'  No  other  punishment  imposable  by  court-martial — neither 
a  sentence  of  death,  dismissal,  suspension,  dishonorable  discharge,  nor 
im])risonment — involves  jy^r  se  a  forfeiture  or  deprivation  of  any  part  of  the 
pay  or  allowances  due  the  party  at  the  time  of  the  a])proval  or  taking  effect 
of  the  sentence.'  Nor  can  pay  be  forfeited  by  any  misconduct  of  a  soldier, 
however  grave  (other  than  desertion  or  absence  without  leave),  unless  he  is 
brought  to  trial  and  expressly  sentenced  to  forfeiture  for  the  same.*  All 
forfeitures  by  sentence,  whetiier  or  not  so  expressed  to  be  in  terms,  are  to 
be  understood  and  treated  as  forfeitures  to  the  United  States,  accruing  to 
the  general  treasury.^ 

Where  a  sentence  imposes  a  forfeiture  of  the  "  monthly  "  pay  or  a  part 
of  the  "  monthly  "  pay  of  a  soldier  for  a  designated  number  of  mouths,  the 
sum  forfeited  is  the  amount  indicated  multiplied  by  the  number  of  months. 
Thus  where  the  sentence  of  a  soldier  imposed  a  confinement  for  eight  months 
with  a  forfeiture  of  eiglit  dollars  of  his  monthly  pay  for  the  same  period,  the 
sum  forfeited  was  not  eight  but  sixty-four  dollars." 

A  forfeiture  by  sentence  of  "pay  and  allowances,"  while  it  does  not 

'  Dig.  J.  A.  Gen.,  G99,  par.  12. 

'  Ibid.,  417,  par.  2.     Compare  Elliott  vs-  R.  R.  Co..  9  Olto,  573. 

*  Ibid.  Tliis  princii>le  is  well  illustrated  by  the  opinion  of  the  Attorney-General  (13 
Opius.,  103).  coiicuning  with  an  opinion  of  the  Jucige-xldvocate  General  in  the  case  of 
Major  Herod,  wliere  it  was  held  that  the  fact  that  the  accused  had  been  sentenced  to  dea'th, 
on  conviction  of  murder,  diil  not  affect  his  right  to  his  pay  from  the  date  of  his  arrest 
to  that  of  the  final  action  taken  on  the  sentence  b}-  the  President.  And  see  the  more 
recent  ojiinion  of  the  Attorney-Gi-neral  of  November  9,  1876,  (15  Opins. ,  175.)  to  the 
effect  that  the  pay  of  otlicers  and  seamen  of  the  navy  is  not  divested  by  the  operation 
of  sentences  of  imprisonment  or  suspension,  but  only  when  forfeited  in  specitic  and 
express  terms  in  the  sentence. 

*  Ibid.,  417,  par.  2.     Retained  pay  may  be  so  forfeited.     See  par.  1369,  A.  R.  1895. 

'  Ibid.,  418,  par.  5.  Soliliers'  pay  forfeited  by  sentence  to  the  United  Stales  was,  by 
the  Act  of  March  3,  1851,  (Sec.  4S18,  Rev.  Sts.,)  appropriated  for  the  support  of  the 
Soldiers'  Home.  This  appropriation,  as  here  e.xpressed,  is  of  "all  stoppages  or  tines 
adjudiisd  against  soldiers  by  sentence  of  courts-martial,  over  and  above  any  amount  that 
may  be  due  for  the  reimbursement  of  government  or  of  individuals."  The  "in- 
dividuals" here  intended  were  no  doubt  sutlers  and  laundresses,  or  other  persons, 
(including  perhaps  the  class  for  whom  "  reparation  "  is  provided  by  Art.  54.)  to  whom 
a  lien  on  soldiers'  pay  may  be  given  by  statute  or  regulation. 

Pay  forfeited  by  sentence  of  court-martial  can  accrue  to  the  United  Slates  onlv.  A 
sentence  cannot  forfeit  (appropriate,  or  "  stop  ")  pay  for  the  reimbursement  or  beuetit  of 
an  individual,  civil  or  military,  however  justly  the  sjune  may  be  due  him,  either  for 
money  borrowed,  stolen,  or  embezzled  by  the  accused,  or  to  satisfy  any  other  pecuniary 
liability  of  the  accused  whether  in  the  nature  of  debt  or  damages  ;  nor  can  a  sentence 
forfeit  pay  for  the  support  or  benetit  of  the  family  of  the  accused,  or  for  the  benelJt  of 
a  company  fimd.  post  fund,  hospital  fund,  etc.,  none  of  these  funds  being  money  of  the 
United  States.     Dig.  J.  A.  Gen.,  418.  par.  5. 

*  Dig.  J.  A.  Gen.,  419.  par.  6.  See,  also,  the  opinion  of  the  Judge-Ailvocate  General 
published  in  G.  O.  121.  War  Department,  1874,  and  par.  951,  A.  R.  1895. 


152  MILITARY   LAW. 

affect  tlie  riglit  of  the  soldier  to  receive  during  his  term  of  enlistment  the 
usual  allowance  of  clothing  in  kind,  forfeits  any  pecuniary  allowance  that 
may  be  due  the  soldier  on  account  of  clothing  not  drawn.'  While  he  re- 
mains in  tlie  service  a  soldier  must  be  clothed  as  well  as  fed.  Tlie  excep- 
tion sometimes  made  by  courts-martial  in  such  sentences,  "  except  necessary 
clothing,"  being  in  the  nature  of  surplusage,  is  thus  seen  to  be  unnecessary.' 

Where  the  sentence  is  confinement  for  a  certain  number  of  months  or 
years,  with  a  forfeiture  of  pay  "  for  the  same  period,"  the  execution  of  the 
forfeiture  properly  begins  and  ends  with  the  term  of  the  confinement.' 

A  forfeiture  of  pay  "  now  due  "  means  due  at  the  date  of  the  promulga- 
tion of  the  approved  sentence."  Pay  which  is  not  due  cannot  be  forfeited 
by  a  sentence  purporting  to  forfeit  only  pay  which  is  due." 

A  forfeiture  of  a  soldier's  pay,  not  limited  by  the  sentence  to  the  pay  of 
any  particular  designated  month  or  months  or  other  space  of  time,  but 
expressed,  as  such  forfeitures  usually  are,  simply  as  a  forfeiture  of  a  certain 
number  (as  three,  six,  etc.)  of  months'  pay  or  of  a  certain  amount  of  pay 
(as  ten,  twenty,  or  more  dollars  of  his  pay),  is  legally  chargeable  against  the 
pay  due  and  payable  to  the  soldier  at  the  next  pay-day  after  the  promulga- 
tion of  the  approval  of  the  sentence,  and  if  no  pay  is  then  due,  or  that  due 
is  not  sufficient  to  discharge  the  forfeiture,  against  the  pay  due  and  payable 
at  successive  pay-days  till  the  entire  forfeiture  is  satisfied.  The  forfeiture, 
upon  the  promulgation  and  notice  to  the  party  of  the  approval  of  the  same, 
becomes  a  debt  due  to  the  United  States,  and  may  legally  constitute  a  charge 
against  the  pay  then  due  the  party,  if  any,  and  be  satisfied  as  far  as  prac- 
ticable out  of  such  pay  when  payable,  viz.,  at  the  pay-day  next  succeeding 
the  promulgation  of  the  approval  or  of  the  noting  of  tlie  approved  forfeiture 
of  the  muster-for-pay  rolls." 


'  m?:.  J.  A.  Gen.,  418,  par.  4.  „  ■     y   a  a 

»  llnd.,  266,  par.  2.  Forfeiture,  however,  of  "all  pay  aud  allowauces  includes  and 
forfeits  exrta-duty  pay.     Ibid.,  418,  par.  4. 

»  7?/iVZ. .  419,  par.  7.  .  ,       t..      x    a    ^  .oq  iq 

4  See  par.  sm  and  952,  A.  R.  of  1895;  see,  also,  Dig.  J.  A.  Gen.,  423,  par.  19. 

5  Dig   J.  A.  Gen.,  423,  par.  19.  ,   ^     c  • 

«  Ihid  419  pur  8  lu  the  practice,  however,  of  the  Pay  Department  such  forfeitures 
are  charged  only  against  pay  accruing  subsequently  io  the  date  of  the  order  proraul- 
ffatiiiff  the  .sentence.     See  G.  O.  53,  Ildqrs.  of  Army,  1879;  par.  9.)2,  A.  \i.  189.) 

In  a  case  of  a  forfeiture,  by  .sentence,  of  "  pay  due"  (or  "  pay  due  and  to  become 
due  ")  the  amount  of  pay  dtie  and  payable  to  the  party  at  the  date  of  the  approval  of 
the  sentence  is  in  contemiilation  of  law.  returned  from  tlie  approi.rialion  for  the  army 
10  the  general  treasury,  and  becomes  public  money,  and,  being  in  the  ircasmy,  (-annot 
without  a  violation  of  Art.  1,  Sec.  9,  t^  6,  of  llie  Constitution,  be  wiihdrawn  and 
restored  to  the  party  except  by  the  authority  of  Congre.s.s.  An<l  a  forleiiure  is  c()vered 
into  the  treasury  when  it  has  passed  to  the  credit  of  the  Soldiers'  Home  iiuid  in  the 
Treasury  Department.  A  forfeiture  thus  executed  cannot  therefore  be  remitted,  or 
restored  bv  the  pardoning  |)ow<t,  whatever  be  the  merits  of  the  case.  A  sentence 
forfeiting  pay  can  l)e  remllled  only  as  to  pay  not  due  and  payable  at  the  date  of  the 
remission  Where  a  soldier's  pay'has  been  forfeited  by  an  ex.'culed  sentence,  no  meix- 
amendment  of  the  muster-roll  upon  which  the  same  has  been  noted  can  operate  to  undo 
such  forfeiture.     After  pay  forfeited  by  sentence  has  gone  into  the  treasury,  it  cannot 


THE  INCIDENTS  OF  THE  TRIAL.  153 

In  a  sentence  of  forfeiture  of  "  all  pay  due  "  (or  "  all  pay  now  due  ") 
imposed  with  dishonorable  discharge,  to  add  "or  to  become  due  "  would 
give  no  further  etfect  to  the  sentence.  It  is  otherwise,  however,  where  for- 
feiture is  adjudged  alone,  unaccompanied  by  dishonorable  discharge ;  there  the 
term  "  or  to  become  due  "  would  forfeit  pay  falling  due  after  the  date  of 
the  })romulgation  of  the  approval  and  while  the  soldier  remained  in  service.' 

A  forfeiture  remitted  upon  approval  does  not  take  effect.  So  where  a 
forfeiture  of  pay  adjudged  a  deserter  was,  upon  the  approval  of  his  sentence, 
remitted  by  the  reviewing  authority,  it  was  held  that  he  was  entitled  to 
pay  from  the  date  of  his  arrest  or  surrender  and  return  to  military  control — 
the  date  at  which  a  deserter'  is  "  considered  as  again  in  service,"  or  rather 
resumes  his  service.^ 

!i(l(l  to  llie  juilhority  of  the  Executive  to  returu  il  that  tbe  sentence  was  in  fact  void;  the 
authorily  of  Cousrrcss  is  still  neccssarv  to  the  reimbursement  of  the  ofiicer  or  soldier. 
Dig.  J.  A.  Gen..  421,  par.  14. 

Where  a  soldier  wiis  sentenced  to  be  dishonorably  discharged  and  to  forfeit  all  his 
pay  except  twenty  dollars,  and,  upon  his  discharge,  it  ajipeared  that  he  was  indebteil  to 
the  United  Stales  in  a  greater  amount,  held  that  tlie  excepted  sum  could  not  legally  be 
rendered  to  him.     IhUL,  420,  par.  9.     See,  al-so.  par.  Ooii,  A.  K.  1895. 

A  sentence  forfeiting  "  pay  "  or  "  pay  and  bounty  "  does  not  aitect  the  right  of  the 
accused  to  a  pecuniary  "  allowance,''  as,  for  example,  .•m  allowance  due  him  for  clothing 
not  drawn.     Ibid.,  41b,  par.  8. 

'  Dig.  J.  A.  Gen.,  42<3,  par.  20.  Where  a  soldier  was  sentenced  to  a  forfeiture  of 
ten  dollars  per  moiUh  of  his  pay  for  eighteen  months,  and  his  term  of  enlistment 
expired  before  the  end  of  thai  time,  lield  that  he  could  nut  legally  he  retained  in  the 
service  bevond  such  term  for  the  purpose  of  the  full  execution  of  the  forfeiture. 
Ibid  ,  420,  'pHf.  10. 

Where  a  soldier  was  sentenced  to  a  forfeiture  of  three  months'  pay,  but  his  term  of 
enlistment  expired  in  about  two  inonlhs  after  the  ajiproval  of  the  sentence,  so  that  one- 
third  of  the  forfeiture  remained  unexecuted, — held,  on  his  subsequently  re-enlisting, 
that  this  balance  could  not  legally  be  slopped  against  his  jiay;  the  second  eidistment 
being  a  new  and  indeprndent  contract,  and  the  party  contracting  not  being  subject  to  a 
liability  attaching  to  the  distinct  status  occupied  by  him  under  a  previous  contract. 
Hid.,  par.  11. 

In  a  case  of  a  non-commissioned  officer  having  pay  due  iiira  and  sentenced  to  reduc- 
tion and  forfeit iir<'  of  pay,  whether,  the  forfeiture  should  be  satisfied  out  of  his  pay  as 
non-commissioned  ofliccr  or  out  ot  his  pay  as  private  after  the  reduction  will  properly 
depend  upon  the  intention  of  the  court,  if  the  same  can  be  gathered  from  the  terms  of 
the  sentence.  But  wliere  a  sergeant  to  whom  a  month's  pa}'  was  overdue  wassenlenced 
"to  be  reduced  to  the  ranlis.  forfeiting  three  months'  pay,"  held  that  this  forfeiture,  upon 
the  approval  of  the  sentence,  created  a  debt  to  the  United  States  which  might  legally  be 
satisfied  out  of  the  pay  of  the  soldier  as  a  sergeant  so  far  as  the  .same  would  g'l,  and  as 
to  the  balance,  out  ol'  his  pay  as  a  private.     Ibid.,  par.  12. 

Where  an  officer  was  sentenced  to  be  disiuissed  with  forfeiture  of  pay  due,  and  sub- 
sequently to  the  approval  of  the  sentence,  but  before  such  approval  had  been  promul- 
gated to  the  army  or  the  officer  had  becni  officially  nofilied  of  the  same,  lie  ajiplied  for 
and  received  the  pay  due  him.  held\\\i\\.  inasmuch  as  the  forfeiture  had  not  taken  effect 
at  the  time  of  the  |»ayrnent  no  illegal  act  w.as  ronimilted  by  the  officer,  aid  that  the 
jiavinaster  who  jiaid  hiiu  was  not  properly  to  be  held  acci)unlable  for  the  amount  paid. 
Ibid  ,  421,  par.  13. 

■  Par.  131.  A.  R   lb9r). 

*  Dig..  J.  A.  Gen.,  423,  par.  21.  Where  a  soldier  was  sentenced  "to  be  dishonor- 
ably di.scharged.  forfeiting  .-ill  pay  and  allowances,  and  to  be  confined  for  three  months," 
and  the  dishonorable  dischaige  was  remitted  in  approving  the  seiUence,  JieUi  that  the 
fi^rfeiture  was  evidently  intended  to  relate  to  pay  due  sit  the  date  of  discharge,  antl 
that,  as  the  discharge  had  been  remitled,  tlie  fort'eiture  could  apply  only  to  pay  due 
at  tiie  date  of  promulgation  of  the  sentence.     Ibid.,  par.  23. 

Where  a  sentence  of  forfeiture  of  ten   dollars   per  month  for  a  certain   number  of 


154  MILITARY  LAW. 

Variance  in  Sentence. — A  material  variance  between  the  name  of  the 
accused  in  the  specification  and  in  the  sentence  is  fatal  to  its  validity  and 
should,  if  possible,  be  corrected  by  a  reassembling  of  the  court  for  a  revision 
of  its  sentence.  If  this  be  rendered  impracticable  by  the  exigencies  of  the 
service,  the  sentence  should  in  general  be  disapproved  as  fatally  defective.' 

Sentence  in  Excess  of  Limit. — Where  a  sentence  in  excess  of  the  legal 
limit  is  divisible,  such  part  as  is  legal  may  be  approved  and  executed.  Thus 
where  a  sentence  of  an  inferior  court  imposes  a  fine  or  forfeiture  beyond  the 
limit  of  the  83d  Article  of  War,  the  sentence  may  be  approved  and  executed 
as  to  so  much  as  is  within  the  limit." 

Where  the  court  remarks  with  its  sentence  that  it  is  "  thus  lenient  " 
because  the  prisoner  has  already  been  a  long  time  in  confinement,  or  for 
other  ground  stated,  it  exceeds  its  function.  Such  a  consideration  is  not 
pertinent  to  the  fixing  of  the  measure  of  the  punishment,  which  should  be 
proportioned  simply  to  the  facts  in  evidence  as  found.  Extraneous  facts 
may  serve  as  a  basis  for  a  recommendation  only.' 

To  be  valid  a  sentence  must  of  course  rest  upon  a  formal  finding  of 
guilty  of  an  offense  for  which  the  accused  has  been  tried.  Thus  a  finding 
of  guilty  on  one  of  several  charges,  a  conviction  upon  which  requires  or 
authorizes  the  sentence  adjudged,  will  give  validity  and  effect  to  such  sen- 
tence although  the  similar  findings  on  all  the  other  charges  are  disapproved 
as  not  warranted  by  the  testimony.  But  a  finding  of  guilty  of  a  specification 
to  a  charge,  but  not  guilty  of  the  charge  itself,  will  not  support  a  sentence, 
unless  indeed  there  is  added  a  conviction  of  some  lesser  offense  included  in 
that  charged.^ 

montlis  wasrcuiitied  thirteen  days  after  pioiiiulg;itiou,/<eM  thut  the  forfeiture  not  nffected 
bv  tlie  remission  was  to  be  executed  by  stopping  against  the  soldier's  pay  ihe  thirtieth  part 
of  ten  dollars  for  each  and  every  day  prior  to  the  remission.     Dig.  J.  A.  Gen.,  par.  23. 

Where  a  forfeiture  of  ten  dollars  per  month  for  three  months  was  imposed  upon  a 
soldier  (in  the  first  year  of  his  enlistment),  field  tluit  this  could  not  be  executed  by  for- 
feiting thirty  dollars  in  one  sum  when  so  much  had  aggregated  as  pay  due,  but  that,  as 
his  available  monthly  pay  was  nine  dollars  only  (four  dollars  being  retained  under  the 
Act  of  .June  16,  iS90),  the  execution  would  be  best  managed  by  remitting  one  dollar  for 
each  7nouth  included  in  the  sentence.     Udd.,  par.  24. 

'  Dig.  J.  A.  Gen.,  743.  Thus  held  in  a  case  where  the  names  in  the  sentence  and  the 
speciticalion  were  entirely  different,  the  one  being  John  Moore  and  the  other  .Tames  Cun- 
ningham; also  in  cases  in  which,  while  the  surnames  were  the  same,  the  Christian  names 
were  quite  different,  one  being  George  and  the  other  AVilliam,  etc.;  also  in  a  case  where 
the  name  in  the  sentence,  though  similar  to  that  in  the  specification,  was  not  idem  sonans, 
as  where  the  accused  was  arraigned  upon  charges  in  which  he  was  designated  as  Wood- 
worth,  but  was  sentenced  under  the  name  of  Woodman.  A  difference,  however,  in  a 
middle  initial  is  not  a  material  variance,  a  middle  name  not  being  an  es.seutial  part  of  the 
Christian  name  in  law.*     Ibid. 

«  Ibid.,  702,  par.  19.  See  Circular  No  2,  H.  Q.  A.,  1892.  When  a  sentence  of  con- 
finement or  forfeiture  is  in  excess  of  the  legal  limit,  the  part  within  the  limit  is  legal  and 
may  be  executed.     Par.  943,  A.  R.  1895. 

»  Ibid. ,  702,  par.  20.  See,  also,  the  title  Recommendations  to  Clemency,  post. 

*  Ibtd.,  696,  i)ar.  5. 

*  That  the  law  "  recognizes  but  one  Christian  name,"  and  that  the  insertion  or  omission  of  a  middle 
initial  or  initials  "  will  have  no  effect  in  rendering  any  proceeding  defective  in  point  of  iaw,"  see  a 
Opins.  Att.-Gen.,'332;  3  id  ,  467;  also  Franklin  vs.  Tallmadge,  5  Johns.,  84;  Roosevelt  us.  Qardinier,  2  Cow. 
463  ;  State  vs.  Webster,  30  Ark.,  168. 


THE  INCIDENTS  OF  THE  TRIAL.  1^5 

Upon  the  conviction  of  an  officer  or  soldier  under  a  charge  of  a  crime, 
such  as  manslaughter,  robbery,  larceny,  etc.,  to  the  prejudice  of  good  order 
and  juilitarv  disci])line;  wliile  the  statute  of  the  United  States  or  of  the  State 
providing  for  its  punishment  as  a  civil  olfense  may  well  be  referred  to  as 
indicating  the  nature  and  extent  of  the  punishment  deemed  proper  for  the 
same  by  tiio  civil  authorities,  the  punishment  to  be  imposed  by  the  court- 
martial  should  nevertheless  be  measured,  less  by  the  criminality  of  the  act  as 
a  civil  offense  than  by  its  gravity  as  a  breach  of  military  discipline.  Thus 
where  a  soldier,  having  been  brought  to  trial  before  a  civil  court  for  the 
lioniicide  of  another  soldier  and  inadequately  sentenced,  was  subsequently 
tried  by  a  general  court-martial  for  the  military  oti'ense  involved  in  his  act, 
held  that  the  court  could  properly  impose  upon  him  a  penalty  proportioned 
to  the  injury  done  to  the  good  order  and  discipline  of  the  service,  but  could 
not,  by  an  excessive  punishment,  attempt  to  compensate  for  the  over-lenient 
judgment  of  the  civil  court.' 

A  military  punishment  can  legally  be  imposed  only  by  sentence  of  court- 
martial  after  a  regular  trial  and  conviction.  Such  a  punishment  cannot  be 
imposed  by  a  mere  order.  Thus  a  reviewing  officer  who  has  disapproved  the 
sentence  imposed  by  a  court-martial,  in  any  case,  cannot  thereupon  order  an 
independent  punishment  to  be  suffered  by  the  accused.  So  such  an  officer, 
in  disapproving  an  acquittal,  cannot  order  that  the  accused  be  confined  or 
otherwise  punished.  So  a  commander,  in  restoring  a  deserter  to  duty 
without  trial  according  to  par.  132,  Army  Regulations  of  1895,  is  not 
authorized  to  require  him  to  submit  to  a  punishment  as  a  condition  to  his 
being  so  restored,  or  otherwise.' 

'  Dig.  J.  A.  Gen..  698,  par.  11. 

'■  Ibid  .  700,  par.  14.      We  have  in  our  niilitary  law  no  system  of  disciplm:iry  punish- 
ments.    Except  in  a  few  oi'^es,  unimportant  in  themselves  or  of  rare  occurrence  in  prac- 
tice (see  Arts.  2r).  52,  53,  and  54),  our  code  recognizes  no  punishments  other  thuu  such  as 
may  be  ad)ud<:cd  upon  trial  and  conviction  by  a  military  court.     In  ilie  General  Oniers 
pvunshmctits  iiifiicied  merely  at  the  will  of  military  commanders  have  been  repeatedly 
contlemned  as  illegal  and  forbidden  in   practice.     See  G.  O.  81  (A.  G.  0.,i  1S22  ;  do.  53, 
lldcjrs.  of  Army,  1842  ;  do.  2,  4,  War  Dept.,  1843  ;  do.  39,  Hdqrs.   of  Army.  1845  ;  do. 
645,  War  Dept.,  1865  :  do,  49,  Northern  Dept..  1864  ;  do.  22,  Dept.  of  the  Plat'e,  1867  ; 
do.  44,  id.,  1871;  do.  63,  Dept,  of  Dikota.  1868  ;  do.  106,  id..  1871  ;  do.  40.  Dept.   of  the 
East,  1868  :  G.  C:.  M.  ().,  112,  id..  1870;  do.  id.,  90,  1871;  G.  O.  14.  Dept.  of  the  South.  1869; 
do.  1,  23,  93,  id.,  1873;  do.  9,  Mil.  Div.  of  the  Atlantic.  1869;  do  31,  id..  1S73;  do.  23.  Dept. 
of  the  Lakes,  1870  :    G,  C.  .M.  O.  50,  Dept.  of  the   Missouri,  1871.      Officers  wlio  have 
resorted  to  such  punishments  have  been  n-pcatedlv  brought  to  trial  and  sentenced.     See 
G.  O.  (A   &  I.  G.  O..  of  .Tune  30,  1821;  d-..  8  A,'G,  O.),  1826  :  do.  28,  id.,  18^9    do.  64. 
id.,  1S:«  ;  do.  2,  6,  68,  War  Dept,,  1843  ;  do.  39.  Ildqrs.  of  Army,  1845;  do.  53,  De|.t.  of 
Va,  &  No,  Ca  ,  1864  ;  do.  22,  Dept.  of  iju'  Platte,  1867  ;  do   9,  Mil.  Div   of  the  .\llaiilic, 
1869  ;  do.  14,  Dept.  of  South,  1869  ;  G   C    M.  ()   50,   D.pt.  of  the  Missouri.  1871.     And 
enlisted  men  tried    and  sentenced  for  insubordinate  conduct,  where  such  conduct  has 
been   induced  or  aggravated  by  illegal  corporal    punishments  indicted  upon   them  by 
superiors,   have    commonly  had    their   sentences    remitted    or  mitigated  or   al;oge!her 
disapproved.     See  G.  O.  49,    76.   Northern   Dept  ,    1864;  do.    40,    Dept.   of  the  East, 
1868;  G,  C,  M  O.  90,  id..  1871;  G   O  63,  Dept.  of  Dakota,  1s68;do.  76,  id  ,  1871;  G,  C.  M. 
O.  45,  id.,  1880;  do.  93.  Dept   of  the  Soulii.  1S73.     In  proper  cases  of  course,  as  where 
violence    is   emploved,  escape  attempted,  etc.,    by  soldiers  who  are  mutiiams  or   disor- 
derly, or  in  arrest  under  charges,  force  may  be  used  against  tbem  according  to  the  neces- 


15(5  MILITARY  LAW. 

Sentences  under  the  58th  Article  of  War. — The  58th  Article  of  War, 
a  statute  applicable  only  in  time  of  war,  contains  the  requirement  that  "  in 
time  of  war,  insurrection,  or  rebellion,  larceny,  robbery,  burglary,  arson, 
mayhem,  manslaughter,  murder,  assault  and  battery  with  an  intent  to  kill, 
wounding,  by  shooting  or  stabbing,  with  an  intent  to  commit  murder,  rape, 
or  assault  and  battery  with  an  intent  to  commit  rape,  shall  be  punishable 
by  the  sentence  of  a  general  court-martial  when  conunitted  by  persons  in 
the  military  service  of  the  United  States,  and  the  punishment  in  any  such 
case  shall  not  be  less  than  the  punishment  provided  for  the  like  offense  by 
the  laws  of  the  State,  Territory,  or  District  in  which  such  offense  may  have 
been  committed." 

The  sentence  to  be  awarded,  therefore,  upon  conviction  of  any  of  the 
offenses  above  named  is  mandatory  to  the  extent  that  it  shall  no<"  be  "  less 
than  the  punishment  provided  for  the  like  offenSe  by  the  laws  of  the  State, 
Territory,  or  District  in  which  such  offense  may  have  been  committed." 
It  may,  at  the  discretion  of  the  court,  however,  be  more  severe  than  that 
warranted  by  the  local  law/ 

Independence  of  Courts-martial  in  Awarding  Sentences.  —  A  court- 
martial,  save  for  the  restrictions  ujjon  its  discretion  which  are  imposed  by 
statute  or  are  contained  in  the  Executive  Orders  already  referred  to,  is  not 
subject  to  superior  control  in  determining  the  punishments  to  be  awarded 
upon  conviction  of  military  offenses." 

Recommendations  to  Clemency. — It  is,  of  course,  always  discretionary 
with  a  member  of  a  court-martial  whether  he  will  make  or  join  in  a  recom- 

sities  of  the  case.  See  Manslaughter  g  4  ;  also  G.  O.  5:5,  Hciqis.  of  Aniiv,  1843  ; 
do.  2,  War  Dept.,  1843;  G.  C.  M.  O.  47,  Hdqrs.  of  Army,  1877;  G.  O.  58.  Dept. 
of  Va.  &  No.  Ca.,  1864:  do.  40,  Dept.  of  the  P:a>l,  18G8  ;  G.  G.  M.  O.  113,  id., 
1870;  do.  90,  id.,  1871  ;  G.  O.  23,  Dept.  of  the  Lakes,  1870  ;  do.  106,  Dept.  of  Dakota, 
1871  ;  do.  93,  Dept.  of  the  South,  1873  ;  do.  31,  Mil.  Div.  of  the  Atlantic.  1873  ;  G.  C. 
M.  O.  37,  Dept.  of  Texas,  1880.  This,  however,  is  prevention  aud  festrnint,  not  punish- 
ment; the  authority  to  use  the  needful  force  in  such  cases  will  not  justify  the  supe- 
rior, when  the  offender  is  repressed  or  apprehended,  in  suhjectiug  Jiiiu  lo  arbitrary 
punitory  treatment. 

'  Wiiere  a  sentence,  adjudged  by  a  court  convened  t)y  tlie  authority  of  tliis  Article, 
Imposed  a  punishment  of  less  severity  than  tiiat  provided  fur  the  same  olTense  by  the 
law  of  the  State  in  which  the  offense  was  committed  (as  imi)risonmenl  where  the  hiw 
of  the  State  required  the  deatli-ix-nalty),  Itekl  that  such  a  sentence  was  unauihorized 
jind  inoperative.  But  though  the  punishment  mu.st  not  be  "less,"  it  ma}-  legally  be 
of  greater  severity  than  that  provided  by  the  local  statute.  Ucld  that  tlje  court,  in 
imposing  punishment,  should  be  governed  by  the  local  law  (so  far  as  required  by  the 
Article),  although  the  offense  was  committed  in  a  Stale  whose  ordinary  relations  to  the 
General  Government  had  been  suspended  by  a  state  of  war  or  insurrection.*  Dig.  J.  A. 
Gen.,  49,  par.  5. 

'  While  a  specific  punishment  may  be  recommended,  in  orders,  to  be  adjudged  by 
courts-martial  in  a  certain  class  of  cases,  it  is  not  competent  to  order  such  courts  to  adopt 
a  particular  form  of  sentence  in  any  case.  The  duty  and  discretion  of  courts-martial  in 
the  imposition  of  punishments  are  prescribed  and  defined  by  the  Articles  of  War.  Ibid., 
314,  par.  3. 


•  That  the  Southern  States  (luring  the  late  war  were  "at  no  time  out  of  the  pale  of  the  Union,"  see 
White  IS.  Hart,  Vi  Wallace,  640. 


TUE  INCIDENTS  OF  THE  TRIAL.  157 

moudation  to  clemency.  Members,  however,  will  in  general  do  well  to 
refrain  from  subscribing  recommendations  where  the  testimony  on  the  trial, 
as  to  the  merits  of  the  case  or  the  character  of  the  accused,  fails  clearly  to 
justify  a  remission  or  mitigation  of  the  punishment.  Weak  and  ill-consid- 
ered recommendations  have  not  unfrequeutly  given  rise  to  severe  criticism 
on  the  part  of  reviewing  ofticers.' 

Members  of  a  court-martial  desiring  to  recommend  an  accused  to 
clemency  need  not  all  sign  the  same  statement.  There  may  be,  in  any  case, 
two  or  more  separate  recommendations  each  signed  by  different  members.' 

A  recommendation  of  the  accused  to  clemency  is  no  part  of  the  oflicial 
record  of  the  trial,  or  of  the  proceedings  of  the  court  as  such,  but  is  merely 
the  personal  act  of  the  members  who  sign  it.  It  should  not,  therefore,  be 
incorporated  with  the  record  proper,  but  should  be  appended  to  or  traus- 
mitteil  with  the  same,  as  a  separate  and  independent  paper.' 

Additions  to  Sentence.  —  W'iiere  the  punishment  which  may  be  imposed 
upon  conviction  is  discretionary  with  the  court,  and  the  sentence  awarded  is 
less  than  that  usually  adjudged  for  tlie  offense  cliarged,  it  has  been  cus- 
jomary  for  the  court  to  add  to  such  sentence  the  reasons  which  have 
actuated  it  in  its  leniency.  The  considerations  which  have  influenced 
courts  in  this  direction  have  in  general  been  derived  from  the  youth,  inex- 
perience, or  good  character  of  the  prisoner,  or  from  mitigating  causes  wliich 
Jiave  been  developed  during  the  progress  of  the  trial.  Such  indulgence  has 
been  shown  on  account  of  the  youth  of  the  accused,  his  inexperience  in  the 
service,  his  character  as  testified  to  by  his  superior  officers,  or  his  ignorance 
of  orders  or  regulations,  where  such  ignorance  is  not  due  to  his  own  negli- 
gence, or  was  caused  by  the  unlawful  conduct  of  others,  or  because  the  fact 


'  Dig.  J.  A.  Gen.,  638,  par.  3.  Thus  in  G.  C.  M.  O.  92,  Ildqrs.  of  Annv,  1867,  the 
Secretary  of  War  expre,sses  biui.self  !i.s  "surprised  to  tiud  tiiat  any  officer  of  the  court 
could  recommend  remission  or  commutation  of  tlie  sentence  of  dismissal  in  a  case  where 
tlie  conduct  of  the  officer  tried  was  as  reprehensible  as  that  of  "  the  accused.  In  ofFerin,£j 
vecommendalions  members,  should  be  careful  to  state  the  specific  grounds  upon  which 
they  l)ase  the  same.*     Ibid. 

Where  a  member  of  a  court-martial  who  had  joined  in  a  recommendation  wliich  had 
been  appended  to  the  record  and  regularly  transmitted  to  llie  reviewing  autlioritv 
applied  to  have  his  name,  as  subscribed  thereto,  cancelled  on  the  ground  that,  because 
of  information  since  received,  his  oi^inion  of  the  accused  iiad  been  reversed,  adristd  that 
such  a  proceeding  would  ije  exceptional  and  irregular,  and  that  the  preferable  course 
would  l)e  tolile  with  the  record  the  applicati<^n  and  statement  of  liie  meml)er,  so  that  the 
same  might  be  referred  to  and  considered  in  connection  with  the  recommendation. 
Ibid.,  par.  2. 

'  Ibid. .  639,  par.  4. 

»  Ibid..  638.  par.  1. 


*  III  G.  O.  TO,  Dept.  of  Dakota,  I'^TO.  Maj.  (ipn.  Hancock,  th*-  reviewing  autlioritv,  observes-  "  \s  the 
Wiipiiilix  <  of  the  court  are  silent  with  ie>;ai(i  to  the  considerations  hv  whicli  theV  were  iliienced  in 
niakin,:  \\i^\r  recoininendution  in  the  prisonnr's  hehalf,  it  i-;  impossible  for  the  reviewing'-  authoritv  to 
deternmi.-  whether  their  reasons  lor  iniikinp  the  reconuneiuialion  were  vuffleient  to  just  if  v  a  niitl>'ntion 
of  the  sHutt-nce.  No  consi.leration  can,  therefore,  be  pai.l  to  it.  The  sentence  is  approved  and  will  bfi 
duly  carried  into  execution." 

A  late  case  in  which  theie  were  two  recomnipndation.s-one  signed  by  a  sinffle  member-is  published 
and  remarked  upon  m  G.  C.  M.  O.  93,  War  Department,  1875. 


158  MILITARY  LAW. 

that  the  act  charged  was  a  lirst  offeuse,  or  was  committed  without  malice 
or  criminal  intent,  or  was  due  to  excusable  ignorance  of  fact. 

It  is  proper  to  remark,  however,  in  this  connection,  that  a  court-martial 
in  thus  extending  leniency  to  a  person  convicted  of  a  military  offense 
clearly  exceeds  its  function,  and  trespasses  upon  the  field  expressly  reserved 
by  statute  to  the  reviewing  authority.  Its  action  in  this  regard,  therefore, 
should,  in  general,  be  restricted  to  the  formal  recommendation  to  clemency 
above  described.' 

PROCEEDINGS    IN    REVISION. 

Revision  of  Findings  and  Sentence. — So  long  as  they  continue  in  the 
lethal  custody  of  the  court  which  imposed  them,  the  findings  and  sentence 
are  subject  to  revision  and  amendment.  The  procedure  in  snch  case  is,  first, 
by  a  proper  motion  to  bring  up  the  finding  or  sentence  for  reconsidera- 
tion, and  then  by  a  similar  motion  to  revoke  the  former  finding  or  sentence, 
substituting  therefor  the  new  conclusion  reached  by  the  court  as  a  result 
of  its  deliberation.  The  action  of  the  court  in  such  proceedings  must,  of 
course,  be  fully  set  forth  in  the  record. 

Revision  at  the  Instance  of  the  Reviewing  Authority.— Revision  pro- 
ceediijo-s  may  also  originate,  in  a  manner  presently  to  be  explained,  with  the 
reviewing  authority,  such  power  being  a  necessary  incident  of  his  authority 
to  appoint  or  convene  courts-martial.  In  a  proper  case,  therefore,  the  pro- 
ceedings may  be  returned  to  the  court  by  the  reviewing  authority,  so'  long 
as  they  remain  in  his  custody  awaiting  approval  or  confirmation.  Courts- 
martial  should  not  be  reconvened,  however,  for  the  purpose  of  making 
immaterial  amendments  in  their  records,  nor,  in  general,  to  reduce  the 
punishment  awarded  so  as  to  bring  it  within  the  legal  limit  when  it  is  in 
the  power  of  the  reviewing  authority  himself  to  do  this;  it  being  undesirable 
that  courts-martial  should  be  unnecessarily  reconvened  for  the  reconsidera- 
tion of  their  proceedings.  ■ 

There  is  no  limit  to  the  number  of  times  that  a  court  may  be  reconvened 
for  a  revision  of  its  proceedings.  It  is  seldom,  however,  reassembled  a 
second  time,  where  it  declines  on  the  first  occasion  to  make  the  correction 
desired.' 


'  Where  the  court  remarks  with  its  sentence  that  it  is  "thus  lenient"  because  the 
prisoner  has  already  been  a  long  time  in  confinement,  or  for  other  ground  staled,  it 
exceeds  its  function.  Sucli  a  consideration  is  not  pertinent  to  the  fixing  of  the  measure 
of  the  punishment,  which  should  be  proportioned  simply  to  the_  facts  in  evidence  as 
found.     Extraneous  facts  may  serve  as  a  basis  for  a  recommendation  only.     Dig.  J.  A. 

Gen.,  702,  par.  20,  ^        ^      .  ,,.,,.     ^    n 

«  Dig.  .J.  A.  Gen.,  677,  par.  1.  In  the  case  of  Brig.-Geu.  Swaim,  published  m  G  C. 
M.  O.  f9,  A.  G.  O.  of  188"),  the  proceedings  were  twice  returned  to  the  court  by  the 
President ;  once  for  a  revision  of  its  findings,  and  a  second  time  for  revision  of  the  sen- 
tence, which  had  been  modified  by  the  court,  at  its  own  motion,  during  the  proceedings 
consequent  upon  the  first  reference  of  the  case  for  revision  of  the  findings.  In  the 
British  service  there  can  be  but  one  such  reference.     Manual  of  Military  Law,  63. 


THE  INCIDENTS  OF  THE  TRIAL.  159 

Return  of  Proceedings. — Where  the  record  of  u  trial,  as  forwarded  to 
the  reviewing  authority  for  his  action,  is  deemed  by  him  to  exhibit  some 
error,  omission,  or  other  defect  in  the  proceedings  capable  of  being 
supplied  or  remedied  by  the  court,  the  court  may  be  reconvened  by  the 
order  of  the  reviewing  officer  for  the  purpose  of  correcting  the  record  in 
the  faulty  particular,  provided  a  correction  be  practicable.  In  a  case  of  an 
omission,  the  object  of  course  is  that  the  record  may  be  made  to  conform 
with  the  fact.  If  the  fact  is  that  the  proceeding  apparently  merely 
omitted  to  be  recorded  was  actually  not  had,  the  proposed  correction 
cannot  of  course  be  made.' 

The  order  reassembling  the  court  will  properly  indicate  the  particular  or 
particulars  as  to  which  a  revision  or  correction  is  desired,  or  refer  to  papers 
accompanying  it  in  which  the  supposed  omission  or  other  defect  is  set  forth. 
Whether  the  proposed  correction  shall  be  made  or  not,  is  a  matter  which 
lies  altogether  in  the  discretion  of  the  court.  The  reviewing  authority  can- 
not of  course  compel,  and  would  scarcely  be  authorized  to  command,  the 
court  to  make  it."" 

Procedure  in  Revision. — A  correction  can  be  made  only  by  a  legal  court. 
At  least  live,  therefore,  of  the  members  of  the  court  who  acted  upon  the 
trial  must  be  present.  That  there  are  fewer  members  at  the  reassembling 
than  at  the  trial  is  immaterial,  provided  five  are  present.  The  judge- 
advocate  should  be  present.  If  the  court  closes,  however,  he  should  with- 
draw.' 

It  is  not  in  general  necessary  or  desirable  that  the  accused  be  present  at 
a  revision.  Where,  however,  any  possible  injustice  may  result  from  his 
absence,  he  should  be  required  or  permitted  to  be  present,  and  with 
counsel  if  preferred.'  It  is  now  settled  in  our  law  that  a  court-martial  is 
not  empowered,  at  this  proceeding,  to  take  or  receive  testimony.* 

The  amendment  can  only  be  made  by  the  court  when  duly  reconvened 
for  the  purpose,  and  when  made  must  be  the  act  of  the  court  as  such.  A 
correction   made  by  the   president   or   other   member,   or   by  the   judge- 

'  Dig.  J.  A.  Gen.,  677,  par.  1.  As,  for  example,  an  inadequate,  excessive,  illegal, 
or  irregular  sentence,  or  a  finding  not  authorized  by  the  evidence  ;  or  an  omission  of 
some  raatoriiil  matter— as  a  failure  to  prefix  lo  the  record  a  copy  of  the  convening  order, 
or  to  authenticate  the  proceedings  by  the  signatures  of  the  president  or  judge-advoctUe. 
or  to  enter  the  proper  statement  as  to  the  members  present,  or  to  recite  as  to  tiie  offering 
to  the  accused  of  an  opportunity  to  object  to  the  same,  or  as  to  the  qualifying  of  the 
court  by  the  prescribed  oaths,  or  lo  fully  record  the  plea,  finding,  or  sentence  ;  or  some 
mere  clerical  error  in  a  matter  of  form.  Ibid. 
'/Wd..  678,  par.  2. 

'  Ibid. ,  par.  3.  ... 

••  Dig.  J.  A.  Gen.,  679,  par.  4.  Thus  where  the  defect  to  be  corrected  consists  in  an 
omission  properlv  to  set  forth  a  special  plea  made  or  objection  taken  by  tlic  accused,  it 
may  be  desirable"that  he  should  be  present  in  order  that  lie  may  be  hcani  as  to  the  proper 
form  of  the  proposed  correction.  Where  the  error  is  clerical  merely,  or,  tlioUL'h  relating 
to  a  material  parlicubir,  consists  in  the  omission  of  a  formal  statement  only,  the  presence 
of  the  accused  is  not  in  general  called  for.  Ibid. 
'  Ibid. ,  par.  5. 


160  MILITARY  LAW. 

advocate,  independently  of  the  court,  uiid  by  means  of  an  erasure  or  inter- 
lineation,  or  otherwise,  is  unauthorized  and  a  grave  irregularity.  The 
correction  must  be  wholly  made  and  recorded  in  and  by  the  formal  proceed- 
ings upon  the  revision.  The  record  of  the  correction,  as  thus  made,  will 
refer  of  course  to  the  page  or  part  of  the  record  of  the  trial  in  which  the 
omission  or  defect  occurs;  but  this  part  of  the  record  must  be  left  precisely 
as  it  stands.  The  court  is  no  more  authorized  to  correct  the  same  by 
erasure  or  interlineation  on  the  page,  or  by  the  substitution  for  the  defec- 
tive portion  of  a  rewritten  corrected  statement,  than  would  be  the  judge- 
advocate  or  a  member.* 

Where  the  court  has  been  dissolved  or,  by  reason  of  any  casualty  or 
exigency  of  the  service,  cannot  practically  be  reconvened,  there  can  of 
course  be  no  correction  of  its  proceedings.'  The  procedure  here  contem- 
plated is  of  course  quite  distinct  from  the  ordinary  revision  and  correction 
of  its  proceedings  by  a  court-martial,  from  day  to  day,  during  a  trial  and 
before  the  record  is  completed.' 

PUBLICATION    AND    EXECUTION. 

Publication  of  the  Sentence ;  Execution. — It  has  been  seen  that  the  pro- 
ceedino-s,  as  well  as  the  findings  and  sentence,  of  a  military  tribunal  are 
merely  advisory  in  character,  and  until  they  have  been  approved  or  con- 
firmed bv  the  proper  reviewing  authority  are  legally  inoperative.  The 
proceedings  in  a  particular  case,  therefore,  having  been  acted  upon,  the 
findings  and  sentence,  having  been  formally  approved  or  confirmed,  are  pub- 
lished in  orders;  this  to  the  end  that  execution  of  the  sentence  may  be  had, 
and  that  the  proper  disciplinary  effect  upon  the  command  of  the  offender 
may  be  secured.  Although  such  publication  of  the  sentence  is  not  essential 
to  its  validity,  or  a  necessary  preliminary  to  its  execution,  its  formal 
announcement  in  orders  is  rarely  omitted. 

"  The  order  promulgating  the  proceedings  of  a  court  and  the  action  of 
the  reviewing  authority  will  be  of  the  same  date,  when  practicable.  When 
this  is  not  practicable,  the  order  will  give  the  date  of  the  action  of  the 
.•eviewing  authority  as  the  date  of  the  beginning  of  the  sentence.  This 
does  not  apply  to  sentences  of  forfeiture  of  all  pay  and  allowances," '  such 


»  Dig.  J.  A.  Gen.,  par.  6.  ,      .      .  ,  •       • 

The  reviewiri"-  officer  himself  can  have  no  authority  to  make  a  correction  in  any  part 
of  the  record  Tims  wliere,  upon  a  si)ecitication  duly  setting  forth  a  military  ofleii.se,  a 
court-inarlial  found  an  accused  "guilty  but  without  criminality,"  and  the  reviewing 
commander  in  disapproving  this  contradictory  tinding,  ordered  that  the  words  after 
"guilty"  be  treated  as  struck  out  of  the  record,  held  that,  however  objectionable  the 
findin"-  the  reviewing  officer  could  not  himself  assume  to  correct  it,  but,  if  he  desired  it- 
amen(?ed,  should  have  formally  reconvened  the  court  for  the  purpose.     Ibid.,  680,  par.  8. 

s /6id.',  680,  par.  9.  ^^o        . 

3  Ibid.,  par.  10.     See  Revision  of  findings  and  sentence,  p.  158,  ante. 

*  Par.  945,  Army  llegulations  of  1895. 


THE  INCIDENTS  OP  THE  TRIAL.  Kil 

a  sentence  being  retroactive  in  its  operation,  applying  to  all  pay  due  as  well 
as  that  to  become  due. 

When  tlie  date  for  the  commencement  of  a  term  of  confinement  imposed 
by  sentence  of  a  court-martial  is  not  expressly  fixed  by  the  sentence,  the 
term  of  ctonfinement  begins  on  the  date  of  the  order  j)romulgating  it.  The 
sentence  is  continuous  until  the  term  exjjires,  except  when  the  person  sen- 
tenced is  absent  without  authority.' 

The  word  "  month  "  or  "  months,"  employed  in  a  sentence,  is  to  be 
construed  as  meaning  calendar  month  or  months;  the  same  significance 
being  given  to  the  term  as  is  now  commonly  given  to  it  in  the  construction 
of  American  statutes  in  which  the  word  is  employed.  The  old  doctrine 
that  "  month,"  in  a  sentence  of  court-martial,  meant  lunar  month  has  long 
since  ceased  to  be  accepted  in  our  military  law.' 

When  a  sentence  imposes  forfeiture  of  pay,  or  of  a  stated  portion 
thereof,  for  a  certain  number  of  months,  it  stops  for  each  of  those  months 
the  amount  stated.  Thus  "  ten  dollars  of  monthly  pay  for  one  year  " 
would  be  a  stoppage  of  one  hundred  and  twenty  dollars.  When  the  sen- 
tence is  silent  as  to  the  date  of  commencement  of  forfeiture  of  pay,  the  for- 
feiture will  begin  at  the  date  of  promulgation  of  the  sentence  in  orders,  and 
will  not  apply  to  pay  which  accrued  previous  to  that  date.' 

Cumulative  Sentences.— Where,  while  an  officer  or  soldier  is  undergoing 
a  certain  sentence,  he  is  again  brought  to  trial  for  a  military  offense,  and  a 
further  sentence  is  adjudged  him,  imposing  a  punishment  of  the  same 
species  as  that  which  is  being  executed,  it  is  the  general  rule  of  the  service 
that  the  second  sentence  is  to  be  regarded  as  cuinnJafirc  upon  the  first,  and 
that  its  execution  is  to  commence  when  the  execution  of  the  first  is  com- 
pleted. This  whether  or  not  the  court,  in  the  second  sentence,  may  have 
in  terms  specified  that  the  second  punishment  should  be  additional  to  the 

'  Par.  944,  Army  Re.^ulations  of  1895. 

*  Dig.  J.  A.  Gen.,  699,  par.  12.  Held  that  the  term  "  days,"  in  a  sentence  of  a  regi- 
mental court  rwiuiring  a  soldier  "lo  walk  four  daj's  with  a  loaded  knapsack,"  etc..  did 
not  include  nights,  and  should  not  ho  considered  as  embracing  any  longer  period  of  the 
twenty-four  hour.s  than  that  included  between  reveille  and  retreat.     Ihid. 

'  Par.  951,  Army  llegidations  of  1895.  A  sentence  to  continement.  with  or  witho\it 
forfeiture  of  pay,  cannot  become  operative  prior  to  the  date  of  coufinnation.  If  it  be 
proper  to  take  into  consideration  the  length  of  eontinement  to  which  the  prisoner  has 
been  subiected  previous  to  such  contirmation,  it  may  be  done  b}'  mitigation  of  sentence. 
Par.  9J7.'  ihid. 

The  rule  prescribed  in  pars.  944  and  947,  A.  R. ,*  to  the  effect  that  confinement  and 
forfeiture,  wheti  the  sentence  is  silent  as  to  the  lime  of  their  taking  effect,  shall  be  opera- 
live  from  the  date  of  the  promulgation  of  the  sentence  in  orders,  is  an  exception  to  the 
general  rule  that  orders  affecting  the  status  or  rights  of  officers  or  soldiers  shall  take 
effect  from  notice.  But  where  a  sentence  of  dismissal  of  a  cadet  of  the  Military  Academy 
was  commuted  to  susi>ension  from  the  Academy,  without  pay,  from  Oct.  31.  l89o,  (the 
date  of  the  order,)  to  Aug.  'J8.  1894.  held  that  Ihe  ireneral  rule,  in  the  absence  of  any 
specitic  exception  of  such  a  case  by  the  Army  Reculations,  applied,  and  that  the  sentence 
as  commuteil  ttiok  effect  upon  and  from  notke,  the  forfeiture  commencing  lo  run  from 
its  date.     Dig.  J.  A.  Gen.,  702,  jwr.  21. 

»  Edition  of  1895. 


162  MILITARY  LAW. 

first;  sncli  second  puuishment  being  made  cumulative  by  operation  of  law 
irrespective  of  any  direction  in  the  sentence.' 

Adding  to  Punishment.— It  is  a  principle  of  military  law  that  no  mili- 
tarv  authority,  whether  the  reviewing  officer  or  other  commander,  can  add 
to  a  punishment  as  imposed  by  a  court-martial.  For  this  reason  neither  for- 
feiture of  pay,  nor  fine,  nor  a  corporal  punisliment  can  be  infiicted  upon  an 
officer  or  sofdier  where  the  sentence  fails  to  adjudge  it.  And  neither  the 
fact  that  the  punishment  awarded  by  the  court  is  regarded  as  an  inadequate 
one  nor  the  fact  that  the  period  is  a  time  of  war  can  affect  the  application 
of  the  principle.  Thus  where  the  punishment  imposed  by  the  sentence 
was  to  carry  a  weight  of  twenty  pounds,  it  has  been  held  that  it  would  be 
illet^al  for  the  officer  charged  with  the  execution  of  the  sentence  to  increase 
the  weight  to  thirty  pounds.' 

A  legal  sentence  of  court-martial,  when  once  duly  approved  and  executed, 
cannot  be  reached  by  a  pardon,  nor  revoked,  recalled,  modified,  or  replaced 
by  a  milder  punishment  or  other  proceeding,  either  by  the  Executive  or  by 
Congress.'  The  only  remedy  for  a  party  who  has  suffered  injustice  from 
such  a  sentence  is  either  a  new  appointment  to  the  Army  by  the  President 
or  some  legislation  within  the  province  of  Congress  relieving  or  indemnify- 
ino-  him  for  and  on  account  thereof.* 

•  Dio-  J  A  Geu  698  par.  10.  When  soldiers  awaiting  result  of  trial  or  undergoing 
sentence"  commit  offenses  for  which  they  are  tried,  ihe  second  sentence  will  be 
executed  upon  the  expiration  of  the  first.     Par.  948,  A.  R.  1895.  ,    r  •. 

'  Dit^  J  A  Gen  699  par.  13.  So  where  the  sentence  imposed  simply  a  forfeiture 
of  pav  %ld  that  it  w'as  adding  to  the  puuishment  to  order  it  to  be  executed  at  a  niiiilary 
pri-^on'  So  held  that  a  sentence  of  simple  "  confinement  "  for  a  certain  time  did  not 
authorize  the  imposition,  in  connection  with  its  execution,  of  hard  labor,  bo  held  illegal 
to  execute  a  sentence  of  "  confinement  in  a  military  prison  "  by  coinmitling  the  party  to 
a  State  penitentiary.  (And  .see  more  particularly,  as  to  adding  to  the  punishment  in 
cases  of  sentences  of  confinement,  the  title  "  Imprisonment,  Dig.  J.  A.  Gen. ,  441,  ^^  7. 
8  9  )  Where  an  otiScer,  on  conviction  of  the  embezzlement  of  a  certain  sum,  was 
sentenced  without  further  penalty,  to  be  dismissed  the  service,  held  that  tlie  department 
commander,  in  approving  the  sentence,  could  not  legally  order  him  to  be  confined  at  his 
station  till  he  should  make  good  the  amount  embezzled,  since  this  would  be  an  adding 
to  the  punishment  imposed  by  the  court,  as  well  as  an  illegal  exercise  of  power  over  a 
civilian.     iWd,  699,  par.  13.     See,  also,  Barweis  ^s.  Keppel,  2  Wilson,  314.  _ 

A  sentence  adjudging  a  dishonorable  discharge,  to  take  effect  at  such  period  during 
a  terra  of  confinement  as  may  be  designated  by  the  reviewmg  authority,  is  illegal.     Par. 

The  lime  at  which  a  dishonorable  discharge  is  to  take  effect,  as  fixed  by  a  sentence, 
cannot  be  postponed  by  the  reviewing  officer.     Par.  950,  ibid. 

When  tlie  court  has  sentenced  a  prisoner  to  confinement  at  a  post,  no  power  is 
competent  to  increase  the  punishment  by  designating  a  penitentiary  as  the  place  of 
confinement.     Par.  942,  ilnd.  .  .  •   •     i 

A  mitigated  sentence  can  no  more  be  added  to,  in  execution,  than  can  an  original 
sentence  approved  without  mitigation.     Dig.  J.  A.  Gen..  702,  par.  16. 

3  The  well-established  principles  that  mere  irregularities  in  the  proceedings  will  not 
affect  the  validity  of  an  execnled  sentence,  and  that  a  legal  sentence  once  duly  confirmed 
and  executed  is  "no  longer  subject  to  review  by  the  President,"  so  pointedly  set  forth 
(in  1843)  in  4  Opins.  Alt. -Gen.,  274,  are  further  illustrated  m  15  id.,  290,  432. 

*Dig.  J.  A.  Gen.,  701,  par.  15. 


CHAPTER  IX. 
PUNISHMENTS. 

Prohibited  Punishments. — Certain  forms  of  pnnishment  are  forbidden 
by  statute  to  be  imposed  by  military  tribunals.  In  some  instances  this  pro- 
hibition is  absolute,  as  in  case  of  flogging,  or  of  branding,  marking,  of 
tattooing  tlie  body;  others  are  proliibited  in  time  of  peace  only,  and  may  be 
imposed  in  time  of  war  or  in  presence  of  the  enemy.'  Military  duty  is 
honorable,  and  to  impose  it  in  any  form  as  a  punishment  must  tend  to 
degrade  it,  to  the  prejudice  of  the  best  interests  of  the  service.' 

The  Limits  of  Punishment  Order. — The  operation  of  the  Executive 
Order  imposing  limits  upon  tiie  power  of  courts-martial  to  impose  discre- 

'  Article  VIII  of  tlie  Ameudmeuts  to  the  Constitution  prohibits  the  infliction  of 
"cruel  and  unusual  punislnnenls."  While  this  provision  does  not  necessarily  govern 
courts-martial,  inasmuch  as  they  are  not  a  part  of  the  judiciary  of  the  United  Slates.*  it 
shouhi  be  observed  as  a  general  rule.  Thus  where,  for  an  offense  not  peculiarly  aggravated, 
a  court-martial  imposed  upon  a  soldier,  in  connection  with  a  forfeiture  of  pay  for  six 
months,  the  further  penally  of  carrying  a  loaded  knapsack,  weighing  twenty-four 
pounds,  every  alternate  hour  from  sunrise  to  sunset  of  each  day  (Sundays  excepted) 
during  tiiat  iieriod,  Jicld  that  this  punishment  was  excessive  and  exceptional,  and,  the 
same  having  been  sull'ered  by  the  soldier  for  three  months,  recommended  that  its 
unexpired  term  be  at  once  remitted.     Dig.  J.  A.  Gen.,  697.  par.  7. 

Punishments  are  rrue^  when  they  are  vindictive  in  character,  going  both  in  kind  and 
degree  beyond  the  intention  and  necessity  of  their  infliction  for  the  vindication  of  law  ; 
they  are  uiiusnal  when  unknown  to  the  statutes  of  the  land  or  unsanctioned  by  the  cus- 
toms of  the  courts  ;  a  punishment  is  also  unusual  when,  thougli  apparently  wurranted 
by  law,  it  is  so  manifestly  out  of  all  proportion  to  the  offense  as  to  shock  the  moral 
sense  by  its  barbarity,  or  because  it  is  a  punishment  long  disused  for  its  cruelty  until 
it  has  become  unusual. -I- 

The  punishment  of  ball  and  chain,  though  sanctioned  by  the  usage  of  the  service, 
should,  in  the  opinion  of  the  Judge-Advocate  General,  be  imposed  only  in  extreme  cases. 
Its  lemission  has  in  general  been  recommended  by  him  except  in  cases  of  old  offenders 
or  aggravated  crime,  where  deemed  serviceable  as  a  means  of  obviating  violence  or 
preventing  escape.  This  penalty  has  (as  have  also  those  of  shaving  the  head  and  drum- 
ming out  of  the  service)  become  rare  in  our  army,  since  the  further  corporal  punish- 
ment of  branding,  marking,  etc.,  has  been  expressly  prohibited  by  .statute.  Ihiil.,  par.  8. 
See  Act  of  June  G,  1872,  (17  Stat,  at  Large,  261,)  no. v  incorpora"ted  in  the  98th  Article 
of  War. 

'  Thus  adtised  that  a  sentence  "  to  do  extra  duly  "  for  a  certain  term  would  properly 

*That  the  provisions  of  the  Vth.  Vlth,  and  Vlllth  Amendments  to  the  Constitution,  relating  to 
criminal  proceedings,  apply  only  tn  the  eoiirts.  etc.,  of  the  United  States,  see  Barron  r.<;.  Mayor  of 
l?altimore,  7  Peters,  243:  Ex  ptirte  Watkius.  id.,  573;  Twitchell  fs  The  Commonwealth.  7  Wallace  326- 
Edwards  vs.  Elliott,  21  id.,  .')57:  Walker  vs.  Sauvinet,  2  Otto,  90;  Pearson  vs.  Yewdall,  5  id.,  294;  1  Bish. 
Cr.  L.,  §  72.5. 

+  DeHart  68;  Cooley,  Constitutional  Law,  29G. 

163 


164  MILITARY  LAW. 

tiotiary  punishinents  upon  enlisted  men  is  calculated  to  regulate  and,  to  a 
certain  extent,  to  restrict  such  exercise  of  discretion  in  respect  to  the 
Articles  of  War  to  which  it  rektes.  The  terms  of  the  order  nvast  be  strictly 
followed  as  to  all  sentences  to  which  it  applies,  and  punishments  in  excess  of 
those  therein  prescribed  are  unauthorized  and  are  not  susceptible  of  being 
validated  by  an  exercise  of  power  on  the  part  of  the  reviewing  authority.' 
Where,  however,  a  sentence  in  excess  of  the  legal  limit  is  divisible,  such  part 
as  is  legitimate  may  be  approved  and  executed.  Thus  where  a  sentence  of 
an  inferior  court  imposes  a  fine  or  forfeiture  beyond  the  limit  of  the  83d 
Article  of  War,  the  sentence  may  be  approved  and  executed  as  to  so  much 
as  fs  within  tlie  limit." 

Increase  of  Punishment. — It  is  a  well-established  principle  of  penology 
that  the  punishment  imposed  for  a  second  or  any  subsequent  conviction  of 
a  particular  offense  should  in  general  be  more  severe  than  that  imposed 
upon  a  first  or  prior  conviction  of  the  same  or  a  similar  offense.  This 
principle  has  been  applied  to  the  procedure  of  courts-martial  in  the  rules, 
established  by  the  President,'  regulating  the  limits  of  punishment  to  be 
imposed  by  courts-martial  in  cases  in  which  such  punishment  is  discretion- 
ary with  the  court.  This  with  a  view  to  obtain  the  deterrent  effect  of 
increased  punishment  upon  military  offenders  as  a  class,  and  to  secure  a 
similar  result  in  respect  to  individual  offenders  who  have  been  convicted  of 
repeated  violations  of  particular  disciplinary  provisions.  For  the  reasons 
above  stated,  therefore,  the  court,  having  reached  a  finding  of  guilty  in  a 
particular  case,  is  reopened  and  the  prosecution  is  permitted  to  introduce 
evidence  of  previous  convictions  of  the  same  or  similar  offenses,  the  purpose 
being  to  see  whether  "  the  prisoner  is  an  old  offender,  and  therefore  less 
entitled  to  leniency  than  if  on  trial  for  his  first  offense."  ' 


be  disapproved.  B>o  admsed  of  sentences  imposins:  "guard  diity  "  for  cittiiiu  periods 
So  lulvis^d  of  a  senlencu  iiiiposiii.u;,  in  coiuu'Clioii  with  a  teiiu  of  confii)eiiient  in  charge 
of  the  iruani,  the  penalty  of  "  sounding  all  tiie  bugle-calls  at  the  jtost  during  tlie  same 
period."  So  advised  in  regard  to  a  sentence  wliicli  retiuired  a  deserler.  not  for  the 
l)Mrpo.s('  of  making  good  the  time  lost  by  his  desertion,  hut  as  a  punishinent,  to  serve  for 
an  additional  year'after  the  expiration  of  his  tmn  of  (iulistmcnt.      /hid.,  698,  par.  9. 

*  Acts  of  September  27,  1890,  (20  Stat  at  large,  491,)  and  October  1,  1891,  (26  ibid., 
648).  Under  the  authority  conferred  by  these  statutes  four  orders  prescribing  limits  of 
punishment  have  been  issued  hy  the  President.  The  one  now  in  force  bears  dale  of 
June  12,  I'JOo,  and  was  published   to  the  Army  in  General  Orders  No.  42  of  the  War 

Dept.  of  1905. 

*  Dig.  J.  A.  G.,  702,  par.  19.  A  sentence  cannot  legally  extend  the  time  of  the  ser- 
vice of  a  soldier  beyond  the  term  for  which  he  originally  contracted.     Ibid.,  par.  17. 

The  existing  law  fixing  the  term  of  a  soldier's  enlistment  at  three  years,  a  court-mar- 
tial can  have  no  power  to  prolong  it  by  adding  to  such  term  an  additional  period  by  way 
of  punishment.     Ibid.,  par.  17. 

*  See  note  1,  supra. 


p  uNisnMENTS.  1 6 ; 


PUNISHMENTS. 

Sources. — The  punishments  which  courts-martial  may  inflict  upon  the 
conviction  of  persons  accused  of  military  offenses  are  regulated  by  statute, 
as  in  the  Articles  of  War,  or  by  p]xecutive  Order  or  regulation,  in  persu- 
ance  of  a  statute,  and,  to  a  limited  extent,  by  the  custom  of  service.  The 
following  are  those  most  frequently  imposed  upon  commissioned  officers. 

Death. — To  the  validity  of  a  death-sentence  it  is  essential  that  two  thirds 
of  the  members  should  concur,'  and  then  only  when  the  authority  to  im- 
pose capital  punishment  has  been  expressly  conferred  by  law.  Several  of 
the  Articles  authorize  "  any  punishment  except  death  "  to  be  imposed  as  a 
consequence  of  their  violation;  such  sentences,  however,  must  conform  in 
character  to  the  punishments  authorized  by  statute  or  by  the  custom  of 
service  to  be  inflicted  in  such  cases.' 

Execution  of  the  Death-sentence. — For  military  offenses  the  form  of 
death-sentence  imposed  is  that  by  "  shooting  to  death  by  musketry";  for 
murder  and  other  common-law  offenses  which  are  punishable  capitally  the 


'  96th  Article  of  "War.  Though  it  has  sometimes  been  viewed  otherwise,  it  is  deemed 
quite  cletir  upou  the  terms  of  the  present  Article  that  it  is  not  necessary  to  tlie  legality 
of  a  death-seuteuce  tliat  two  thirds  of  the  court  sliould  have  concurred  in  tlie  finding  as 
well  as  tlie  sentence.*  Further,  in  the  absence  of  any  requirement  to  that  effect  in  the 
Article,  it  is  not  deem.ed  essential  to  the  validity  of  the  sentence  that  the  record  should 
state  the  fact  that  two  thirds  of  the  court  concurred  therein.  The  practice,  however, 
lias  been  to  add  such  a  statement       Dig.  Opin.  J.  A.  Gen.,  112,  par.  1. 

A  senieiice  of  death  imposed  by  a  couri-inarlial,  upon  a  conviction  of  several  distinct 
offenses,  will  be  authorized  and  legal  if  any  one  of  such  offenses  is  made  capitally 
punishable  by  the  Articles  of  War,  although  the  other  offenses  may  not  be  so  punishable. 
Ibuh,  par.  3. 

A  court-martial,  in  imposing  a  death-sentence,  should  not  designate  a  time  or  place 
for  its  execiUion,  such  a  designation  not  being  within  its  province,  but  pertaining  to 
that  of  the  reviewing  authoritv.  If  it  does  so  designate,  this  part  of  the  sentence  may 
be  disregarded,  and  a  different  time  or  place  ti.xed  by  the  commanding  general.  Ibid.. 
jiar.  3. 

"Where  a  death  sentence  imposed  by  a  court-martial  has  been  directed  by  the  proper 
authority  to  be  executed  on  a  particular  day,  and  this  day,  owing  to  some  exigency 
of  tlie  service,  has  gone  by  without  the  sentence  being  executed,  it  is  competent 
for  t'ne  same  authority,  or  his  proper  superior,  to  name  another  day  for  the  purpose, 
the  lime  of  its  e.vecution  being  an  immaterial  element  of  this  punishment.}  Ihid., 
par.  4. 

•  Death-sentences  mav  be  imposed,  as  a  discretionary  penalty,  upou  conviction  of  the 
offenses  named  in  the  21st,  23d.  2:3d,  41st,  42d.  44th.  45th,  47tli,  49lh,  51st,  and  58th 
Articles;  such  a  sentence  is  mandatory  upon  conviction  of  the  offenses  set  forth  in  the 
57th  Article  and  in  Section  1343,  Revised  Statutes. 


*  Comparf  McNafrliten,  120. 

+  It  WHS  belli  tiy  tlie  Supreme  Ci>nrt  in  (\)leman  rs.  Tennessee  (7  Otto.  510.  .">-'0)  that  a  soldier  who 
hail  tieen  conviet<»il  of  murder  and  seiiieiiced  to  death  by  a  g^enerai  court-martial  in  May,  ISH.'i.  but  the 
execution  of  whose  sentence  hud  l)eeii  meanwhile  deferred  bv  reason  of  his  escape  and  tlie  pendency 
of  civil  proceedings  in  his  case,  misrht  at  the  date  of  the  nilins  (October  term.  1S7S)  "  l)e  delivered  up 
to  the  military  authorities  of  the  United  State-;,  to  be  dealt  rtith  as  required  by  law." 

More  if-cently  (May.  1879,  It!  Opins..  3J!1)  it  has  been  held  in  this  i-ase  by  the  .Mtorney-Oeneral  that 
the  ileath-senience  niitrht  lejrally  be  executt'd  notwithstandiiifr  the  fact  that  the  soldier  bad  meanwhile 
been  dischaisred  fi-om  tiie  service,  such  itiscliarL'e.  while  formally  separaiinjr  the  partv  from  llie  Army, 
beinjr  viewe<l  as  not  atTectiriK  his  lesral  staius  as  a  mijitarv  onvict.  Hut.  in  view  of  all  the  circum- 
stances of  the  case,  it  was  recommended  that  the  sentence  be  commuted  to  imprisoiunent  for  life  or  a 
term  of  yeai'S. 


loO  MILITARY  LAW. 

sentence  usually  imposed  is  tiiat  by  hanging;  the  same  form  is  awarded  in 
cases  involving  ignominy,  as  for  the  offense  of  being  a  spy,  or  of  desertion 
to  the  enemy  in  time  of  war.  Death-sentences  usually  contain  the  require- 
ment that  the  sentence  shall  be  carried  into  execution  in  the  presence  of  so 
much  of  the  command  of  the  accused  (or  of  the  reviewing  officer)  as  can  be 
''  conveniently  assembled  for  that  purpose." 

Dismissal. — This  punishment  is  authorized  to  be  imposed  for  the  viola- 
tion of  a  number  of  the  Articles  of  War,  and  in  a  majority  of  cases  is 
mandatory;  in  others  it  may  be  imposed  at  the  discretion  of  the  court, 
either  separately  or  in  combination  with  other  forms  of  punishment,  such 
as  forfeiture  of  pay,  or  fine  and  imprisonment.  Its  effect  is  to  completely 
separate  the  officer  so  sentenced  from  the  military  service,  and  to  restore 
him  to  the  status  of  a  citizen.  He  can  re-enter  the  service  only  in  pursuance 
of  an  appointment  by  the  President  with  the  consent  of  the  Senate.'  A 
sentence  of  dismissal  becomes  operative  upon  its  official  delivery  to  the 
officer  affected  thereby,  or  upon  the  receipt,  on  his  part,  of  a  formal  notifi- 
cation of  its  approval  or  confirmation.'  For  convenience  the  present  prac- 
tice is  to  designate,  in  the  order  promulgating  the  case,  a  date  upon  which 
the  dismissal  will  take  effect. 

Publication. — When  an  officer  has  been  "  dismissed  from  the  service  for 
cowardice  or  fraud,"  the  law  requires  that  "  the  sentence  shall  further 
direct  that  the  crime,  punishment,  name,  and  place  of  abode  of  the  delin- 
quent shall  be  published  in  the  newspapers  in  and  about  the  camp,  and  in 
the  State  from  which  the  offender  came  or  where  he  usually  resides;  and 
after  such  publication  it  shall  be  scandalous  for  an  officer  to  associate  with 
him."  = 

Statutory  Consequences  of  Dismissal.  — In  several  of  the  Articles  a  sen- 
tence of  dismissal  serves  to  bring  into  operation  certain  statutory  conse- 
quences that  follow  upon  and  form  part  of  the  punishment  imposed  by  the 
sentence  of  the  court-martial.  Such  consequences  are  expressly  stated  in 
the  particular  Article  which  authorizes  them,  and  need  not,  and  usually  do 
not,  form  part  of  the  sentence  imposed  by  the  court." 

'  Mimmack  vs.  U.  S.,  97  U.  S..  426;  McElrath  vs.  U.  S.,  102  ibid.,  426;  Blake  vs. 
U.  S.,  10;i  ibid.,  227;  Keyes  m.  U.  S.,  109  ibid  ,  336. 

^  Dig.  J.  A.  Gen.,  366,  par.  8.  Dismissal  is  mandatory  upon  ODnviction  of  any  of 
the  oflfenses  named  in  the  Tnh,  6th,  13th,  14th,  15th,  I8tii,  19tli,  26th.  27th,  38th,  ri4fii, 
59lh,  and  61st  Article's;  it  is  discretionary  with  the  court  as  to  the  oflfense  named  in 
Article  3. 

2  ICOth  Article  of  War.  Cashiering  and  dismissal  were  once  quite  distinc^l  punish- 
ments in  military  law;  the  former  involving,  in  addition  to  a  dishonorable  separation 
from  the  service,  a  disability  to  hold  pnblic  office;  and  this  dilTerenre  was  illustrated  by 
the  fact  that  cashiering  was  sometimes  mitigated  to  dismissal.  All  distinction,  however, 
between  the  two  forms  has  long  .since  ceased  to  exist  in  our  law;  cashiering  with  us 
meining  nothing  more  or  other  than  dismissal.  A  .sentence  "to  be  cashiered  " — now  a 
rare  form — is  ecpiivalent  to  a  sentence  to  be  dismissed  the  service.     Dig.  .1.  A.  Gen.,  214. 

In  the  code  of  1874  the  term  "  (;ashiered  "  has  been  retained,  apparently  by  inad- 
vertence, in  two  Articles,  the  8th  and  50111      Di  r.  J.  A.  Gen.,  214. 

*  See  the  6th,  14th,  and  100th  Articles  of  War. 


P  UNISHMENTS.  107 

Disqualification  for  Office. — Disqualification,  or  incapacity  to  liold  office 
under  the  United  States,  although  a  punishment  sanctioned  by  precedent 
in  the  military  service,  is  no  longer  regarded  as  an  appropriate  penalty  in  the 
cases  of  commissioned  otticers,  save  in  the  cases,  presently  to  be  described, 
in  which  it  is  specifically  authorized  by  statute.  This  for  the  reason  that 
it  comes  into  conflict  with  the  constitutional  power  of  the  President  to  make 
appointments  to  office;  a  power  from  its  nature  not  susceptible  of  limitation, 
either  by  statute  or  by  the  sentence  of  a  lawfully  constituted  court-martial. 
It  is  specifically  authorized  in  two  Articles  of  War,  the  Gth  and  1-ith,  but 
is  here  apparently  intended,  not  as  an  independent  punishment,  but  as  a 
penal  consequence  incident  upon  conviction  and  sentence  of  dismissal.  As 
a  distinctive  punishment,  however,  there  are  numerous  instances  in  which 
it  has  been  imposed,'  having  been  regarded  apparently  as  a  particularly 
suitable  penalty  in  cases  of  embezzlement  of  public  funds  or  other  fraud 
upon  the  government.  In  some  instances  the  disqualification,  as  adjudi^ed, 
has  extended  to  the  holding  of  public  office  in  general;  in  others  it  has  been 
confined  to  the  holding  of  military  ofiice. 

Disqualification,  being  a  continuing  puuishmeat,  may  of  course  be 
removed  by  a  remission  of  the  same  by  the  pardoning  power  at  any  time 
during  the  life  of  the  party.  But  while  the  disqualification  for  military 
office  is  less  objectionable  than  the  more  general  form,  it  may  well  be 
doubted  whether  this  species  of  punishment,  inasmuch  as  it  assumes  in 
effect  to  inhibit  the  exercise  by  the  Executive  of  the  appointing  power,  is 
within  the  authority  of  a  court-martial.' 

Imprisonment. — This  punishment,  which  is  awarded  only  for  the  more 
serious  offenses,  may  be  imposed  separately  or  in  connection  with  or  addi- 

'  Instances  of  sentences,  including  (generally  with  dismissal)  the  punishment  of  dis- 
qiialitication,  are  to  he  found  in  the  following  Orders  of  the  War  Department  (or 
Hdqrs.  of  Army)  puhlished  before  tlie  late  war,  the  instances  being  none  nf  them  cases 
of  conviction  of  false  muster;  G.  O.  of  April  2.  1818;  do.  of  Sepl.  25,  1819;  do.  71  of 
1829;  do.  15  of  1860.  The  unfrequency  of  this  punishment  in  the  early  Orders  may 
perhaps  be  owing  in  part  to  the  fact  that  it  was  considered  tliat  "  casliierinir  " — a 
sentence  often  then  adjudged— involved  (iis(iualilication.  See  note  3,  page  lt)(j.  Similar 
instances  of  the  same  punishment  occur  in  the  following  Orders  issued  from  the  War 
Department  during  ami  since  the  late  war.  For  instances  of  such  sentences  see  Dig.  .J. 
A.  Gen.,  375,  par.  1,  note  1. 

'Dig.  ,J.  A.  Gen.,  375.  par.  1.  Tiiis  punishment,  however,  lias,  since  1870,  been  dis- 
continued in  the  practice  of  our  courts-martial,  and  tiiis  discontinuance  is  to  be  tniced  to 
tlie  ruliuir  of  the  Attorney-General  in  an  opinion  addressed  to  the  S-crctarv  df  tlie  Xavy 
ill  1868  (12  Opins.,  528)  to  the  effect  that  a  sentence  of  a  naral  court-martial  by  which  a 
contractor  for  naval  supplies  was  excluded  from  future  dealings  for  such  supplies  with 
the  g()vernment  was  illegal;  sentences  of  disability  in  general  being  further  held  to  be 
"  not  in  accordance  with  the  custom  of  the  service  e.vcept  where  e.xpressly  authorized  bv 
law."  This  ruling  was  applied  to  a  miliiary  case  in  G.  C.  M.  O.  22  (as  also  in  do.  57), 
War.  Dept.,  etc.,  of  1870,  and  the  puiiishinent  of  discjualiticalion  imposed  upon  an 
officer  (lis;ipproved  as  unauthorized.  But  whatever  may  have  been  the  usage  of  naval 
courts-m.'irtial,  the  very  numerous  precedents  of  cases  in  which  such  punishment  had 
been  adjudged  b}'  military  courts  for  a  great  variety  of  offenses  were,  it  is  considered, 
quite  sutticient  to  have  established  that  this  penally  was  sanctioned  by  custom  in  the 
Army.  That  it  is,  however,  subject  intrinsically  to  serious  legal  objection  is  indicated 
in  the  te.vt.     Ilnd.  note  1. 


168        ■  MILITARY  LAW. 

tion  to  a  sentence  of  dismissal;  it  may  also  be  imposed  with  or  without 
hard  labor,  at  the  discretion  of  the  court.  The  term  of  imprisonment 
sliould  be  expressly  stated  in  the  sentence,'  although  a  sentence  of  imprison- 
ment until  a  certain  fine,  specified  in  the  sentence,  has  been  paid  is  still 
authorized  by  custom  of  service.'  For  a  reason  presently  to  be  stated,  the 
place  of  confinement,  as  a  prison,  penitentiary,  etc.,  and  its  character,  must 
be  described  in  the  sentence,  leaving  the  particular  prison  or  penitentiary  in 
which  the  sentence  is  to  be  executed  to  be  designated  by  the  reviewing 
authority  in  tlie  order  promulgating  the  proceedings  of  the  court.'  The 
place  so  designated  for  tlie  execution  of  the  sentence  may  be  changed,  at 
any  time,  at  the  discretion  of  the  reviewing  authority,  or  his  proper 
superior,  or  successor  in  office.'     In  accordance  with  the  present  practice, 


1  A  sentence  which,  in  imposing  continement  (or  imprisonment— the  two  terms  being 
practically  synonymous  in  sentences  of  courts  martini),  fails  clearly  to  indicate  how  long 
the  same  is  to  continue  is  irregular  and  inoperative.  Such  a  sentence  should  be  dis- 
approved by  the  reviewing  authority  unless  it  can  be  procured  to  be  corrected  by  a 
reassembling  of  the  court  for  the  purpose.     Dig.  J.  A.  Gen.,  439,  par.  1. 

2  Sentences  of  imprisonment  till  a  fine,  also  imposed  by  the  sentence,  is  paid  are 
sanctioned  by  the  usage  of  the  service.  It  is  proper,  however,  in  such  sentences  to  affix 
a  limit  beyond  which  the  punishment  shall  not  be  continued  in  any  event.  Where  a 
sentence  adjudges  a  tine,  without  also  adding  (with  a  view  to  enforcing  Us  payment)  a  term 
of  continement,  such  a  continement  cannot  of  course  legally  be  imposed  by  the  military 
commander.  So,  held  that  par.  II  of  G.  O.  61,  War  Department,  1865,— to  the  effect 
that  where  a  court-martial,  in  impcsiug  a  tine,  has  failed  to  require  ihat  the  prisoner 
shall  be  confined  till  the  fine  is  paid,  he  will  not  be  released  without  orders  from  tiie 
War  Department  e.\cept  on  payment  of  the  tine,- transcended  the  authority  r)f  an 
executive  order  ;  such  a  requirement  being  a  puniish'ment,  which  can  be  prescribed  only 
by  sentence  of  court-martial.     /6;'(?  ,  440,  par.  4. 

3  Where  an  officer  or  soldier  is  sentenced  to  be  confined  in  a  penitentiary,  the  proper 
reviewing  authority  may  legally  designate  for  the  execution  of  the  punishment  any- 
State  or  Territorial  penitentiary  within  his  command.  Where  there  is  no  such  peni- 
tentiary available  for  the  purpose  or  desirable  to  be  resorted  to,  he  will  projierly  submit 
the  case  to  the  Secretary  of  War  for  the  designation  of  a  proper   penitentiary.     Ibid., 

114,  par.  7.  .      ,  •,•  ,         c      .i 

■»  It  is  not  addin^'  to  the  punishment,  and  is  authorized  at  mihUiry  law,  tor  tlie  com- 
mander who  ordered  the  original  commitment,  or  his  proper  superit)r,  to  change  the 
place  of  confinement  of  a  prisoner  if  such  a  change  is  required  by  the  exigencies  of  the 
service  provided  that  no  more  severe  species  of  confinement  than  lhat  contemj^lated  m 
the  sentence  is  enforced  after  the  transfer.  Ibid.,  442,  par.  9.  See.  also,  p.ragniphs 
942  and  946,  A.  U.,  1895. 

While  the  authority  upon  whom  it  devolves  to  execute  a  .sentence  of  confinement  is 
not  authorized  to  add  U>  the  punishnicnt  adjudged,  he  is,  on  the  otlier  hand,  not  jusu- 
fied  in  executing  the  same  in  so  indulgent  a  manner  as  to  divest  the  punislunent  ot  its 
intended  and  legitimate  force  and  effect.  Thus  where  certain  prisoners,  .sentenced  to 
terms  of  confinement  on  conviction  of  grave  offenses,  were,  wlule  in  ordinary  good 
health  permitted  to  be  employed  upon  honorable  duties  as  clerks,  etc.,  in  the  offices 
altaciied  to  (and  one  of  which  was  out.side  of)  the  prLson,  held  that  such  employment 
was  in  derogation  of  the  proper  requirements  of  a  sentence  of  imprisonment  and  sliouj.l 
be  ordered  to  be  discontinued.     //«d.,  par.  10. 

It  is  not  adding  to  the  punishme-it  in  executing  a  .sentence  of  confinement  to  require 
the  pri.soner  to  perform  work  jn-escribed  for  prisoners  of  his  class  by  the  slaiute  law. 
Thus  persons  sentenced  to  impiisonmerU,  at  the  Military  Prison  at  Lf^;ivenworth  niay 
lesrally  be  employed  in  the  lal)or  or  at  the  trades  indicated  by  Sec.  1851,  Itev.  Sts.    IbuL, 

par.  8.  r         £  -.1       .  .1 

Where  an  officer  or  soldier  is  sentenced  merely  to  a  term  of  confinement  witiiout  the 
addition  of  "  hard  labor,"  while  he  may  properly  be  retiuired  to  perform  the  ordinary 
domestic  or  police  work  directed  by  the  sanitary  regulations  of  the  prison,  he  cannot 


PUNISHMENTS.  169 

a  sentence  of  imprisonment  becomes  operative  uj)on  a  date  fixed  therefor 
by  the  reviewing  authority  in  the  order  of  promulj^ation.' 

Imprisonment  in  a  State  Prison  or  Penitentiary. — With  a  view  to  dis- 
criminate between  military  otfenses,  properly  so  called,  and  those  which  are 
regarded  as  felonies  by  statute  or  by  the  common  law,  the  07th  Article  of 
War  contains  the  requirement  that  "  no  person  in  the  military  service  shall, 
under  the  sentence  of  a  court-martial,  be  punished  by  continemeut  in  a 
penitentiary,  unless  the  offense  of  which  he  may  be  convicted  would,  by 
some  statute  of  the  United  States,  or  by  some  statute  of  the  State,  Terri- 
tory, or  District  in  which  such  offense  may  be  committed,  or  by  the 
common  law  as  the  same  exists  in  such  State,  Territory,  or  District,  subject 
such  convict  to  such  punishment."  ' 

properly  bo  put  to  unusual  labor  of  a  severe  and  continuous  ciiaracter.  Thus  held  that 
to  rciiuire  a  soldier  senU'nced  simply  to  be  confined  at  Aleatiaz  Prison,  to  work  (hdl}'  at 
blaslini:;  and  quarrying  rock  was  adding  to  the  punishment  and  was  therefore  unauthor- 
ized. To  a  proper  execution,  iiowever.  of  a  sentence  of  confinement  a  secure  keeping 
of  the  person  is  of  course  essential.  Where,  therefore,  it  is  not  pos.sible  otherwise  to 
prevent  a  prisoner's  escape  or  to  prevent  violence  on  his  part,  he  may  be  ironed  without 
adding  to  the  punishment.  But  such  exceptional  restraint  caiuiot  legally  be  imposed 
except  where  thus  necesnary.     Dig   J.  A.  Gen.,  441.  par.  7. 

'  Tiie  old  rule,  that  the  term  of  a  confinement  (of  so  many  mouths,  years,  etc.)  im- 
posed by  sentence  of  court-martial  commenced  on  the  day  on  which  the  prisoner  was 
delivered  to  the  i)roper  officer — as  the  officer  in  ciiarge  of  the  prison  or  commanding  llie 
post — to  be  confined  according  to  the  sentence,  having  been  found  inconvenient  in  prac- 
-ice,  there  was  substiiuted  for  it,  by  G.  O.  21,  Hiiqrs.  of  the  Army,  of  1870,  the  rule 
tiiat  "  the  continement  shall  be  considered  as  commencing  at  the  date  of  the  promulga- 
liou  of  the  sentence  in  orders."  This  rule  being  more  favorable  to  prisoners  thau  the 
old  one,  its  authority  is  not  known  to  have  ever  been  questioned.  Ibid.,  441,  par.  5. 
The  equally  liberal  aiul  more  exact  rule  stated  in  the  text  is  now  generally  followed. 

'  This  Article,  by  necessary  implication,  prohibits  the  imposition  of  confinemeiU  in  a 
penitentiary  as  a  punishment  for  olTenses  of  a  purel}'  or  exclusively  military  character — 
as  desertion,  for  example.*     Dig.  .1.  A.  Gen.,  113,  ]>ar.  1. 

The  term  "penitentiary,"  as  employed  in  this  Article,  has  reference  to  civil  prisons 
only — as  tiie  penitentiary  of  the  United  States  or  District  of  Columbia  at  Washiuirtou, 
the  public  prisons  or  penitentiaries  of  the  difTerent  States,  and  the  penitentiaries  "erected 
by  the  United  States"  (see  Sec.  189'2,  liev.  Sts.)  in  most  of  the  Territories.  The  military 
pri.son  at  Leavenworth  is  ncn  a  j)enitentiary  in  the  sense  of  the  Article.  The  term  State 
or  Slate's  prison  in  a  sentence  is  etiuivaleut  to  penitentiary.     Ibid.,  114,  par.  5. 

A  military  prisoner  duly  sentenced  or  committed  to  a  penitentiary  becomes  subject 
to  the  government  and  rules  of  the  institution.     Jbid.,  par  6. 

A  sentence  of  penilentiaiy  confinement  in  a  case  of  a  purel}-  militar}'  ofTense  is  wholly 
unauthorized  and  should  be  disapproved.  Effect  cannot  be  given  to  such  a  ■sentence  by 
commudng  it  to  confinement  in  a  military  prison,  or  to  some  other  punishment  which 
would  be  legal  for  such  offense.  Noi-,  in  a  case  of  such  an  offense,  can  a  severer  pen- 
alty, as  death,  be  commiUed  to  confinement  in  a  peniteutiar}'.     Ibid.,  113,  par  2. 

Nor  can  penitentiary  confinement  be  legalized  as  a  piniishment  for  purely  military 
offenses  by  designating  a  penitentiary  as  a  "military  pri.son,"  and  ordering  the  contine- 
ment there  of  soldiers  sentenced  to  imprisonment  on  conviction  of  such  offenses.  Ibiii., 
par.  3. 

A  punishment  of  confinement  in  a  penitentiary,  where  legal,  may  be  mitigated  to 
continement  in  a  military  prison  or  at  a  military  post.     Ibid.,  116,  par.  15. 

Where  a  court-martial  specifically  sentences  an  accused  to  confinement  in  a  "  mili- 
tary prison,"  he  cannot  legally  be  committed  to  a  penitentiary,  although  such  form  of 


*  See  G.  O.  4,  War  Dept.,  1867  :  also  ttie  action  talcen  in  cases  in  the  following  General  Orders  :  Q. 
O.  21.  Dept  of  the  Platte.  1866  ;  do.  -'1  id.,  1871  ;  <\o.  44,  Eighth  Army  Corps,  1862  ;  G.  C.  M.  O.  34,  35,  43, 
46,  72,  73,  Dept.  of  the  Missouri,  1870. 


170  MILITARY  LAW. 

The  terms  of  this  Article  constitute  a  restriction  upon  the  power  of 
courts-martial  to  impose  sentences  of  imprisonment  in  respect  to  the  char- 
acter of  the  restraint,  or  the  place  in  which  the  sentence  is  to  be  executed, 
and  "  it  is  nowhere  provided  that  the  punishment  may  not  in  other  respects 
be  orreater  than  the  civil  courts  could  inflict."  ' 

Confinement  to  Limits. — A  form  of  confinement  much  less  severe  than 
imprisonment,  called  confinement  to  limits,  is  recognized  by  custom  of  ser- 
vice as  an  appropriate  punishment  for  commissioned  officers.  It  consists  in 
a  restriction  of  the  offender  to  certain  limits  expressly  described  in  the  sen- 
tence. Such  confinement  may  consist  in  restriction  to  the  limits  of  a  mili- 
tary post  or  reservation  or,  as  expressed  in  a  recent  sentence,  to  the  area  or 
territory  within  a  certain  distance  from  a  city  specially  mentioned  in  the 

imprisoumeiit  would  be  authorized  by  tbe  character  oi  his  offense.  But  where  a  seuteuce 
of  coiitiuement  is  expressed  in  general  terms,  as  where  it  directs  that  the  accused  shall 
be  cou lined  "  in  such  place  or  prison  as  the  proper  authority  may  order,"  or  in  terms  to 
sucii  effi-Cl,  held  that  the  same  may,  under  this  Article,  legally  be  executed  by  the  com- 
mitment of  the  party  to  a  penitentiary,  to  Ije  designated  by  the  reviewing  officer  or 
Secretary  of  War,  provided  of  course  the  oHense  is  of  such  a  nature  as  to  warrant  this 
form  of  punishment.     Dig.  J.  A.  Gen.,  lU,  par.  9. 

An  otfeiise  charged  as  "Conduct  to  the  prejudice  of  good  order  and  military 
discipline,"  which,  however,  is  in  fact  a  larceny,*  embezzlement,  violent  crime,  or  other 
oli'euse  nuuie  punishable  with  penitentiary  confinenK-nt  by  the  law  of  the  State,  etc., 
may  legally  be  visited  with  this  punishment.     Ibid..  114,  par.  4. 

Where  the  act  is  charged  as  a  crime  under  Art.  t)2,  and  charge  and  si)eciticatiou  taken 
loo-ether  show  an  offense  punishable  with  confinement  in  a  peuiteniiary  by  the  law  of 
the  locus  of  the  crime,  the  sentence  may  legally  adjudge  such  a  punishment.  So  held 
in  a  case  where  charge  and  specification  together  made  out  an  allegation  of  perjury 
under  Sec.  539i2,  Rev.  Sts.     Ibid.,  115,  par.  11. 

Held  that  penitentiary  confinement  could  not  legally  be  adjudged  upon  a  conviction 
of  a  violation  of  the  21st  Article,  alleged  in  the  specification  to  have  consisted  in  the 
lifting  up  of  a  weapon  (a  pistol)  against  a  commanding  officer  and  discharging  it  at  him 
with  intent  to  kill.  By  charging  the  offense  under  this  Article,  the  Government  elected  to 
treat  it  as  a  purely  military  offense  subject  only  to  a  military  punishment.  So,  upon  a 
conviction  of  joining  in  a  mutiny,  in  violation  of  Art.  22,  held  that  a  sentence  of  con- 
finement in  a  penitentiary  would  not  be  legal  although  the  mutiny  involved  a  homicide, 
set  forth  in  the  specification  as  an  incidental  aggravating  circumstance.  To  have 
warranted  such  a  punishment  in  either  of  these  cases  the  Government  should  have 
treated  the  act  as  a  "crime,"  and  charged  and  brought  it  to  trial  as  such,  under  Art. 
62.     Ibid.,  par.  10. 

"Obtaining  money  under  false  pretenses"  is  punishable  by  confinement  in  a  peni- 
tentiary by  the  laws  of  Arizona.  A  sentence  of  court-martial,  imposing  this  punishment, 
on  conviction  of  an  offense  of  this  description  committed  in  this  Territory,  charged  as  a 
crime  under  Art.  62,  held  authorized  by  Art.  97.     Ibid.,  par.  12. 

A  conviction  of  a  larceny  of  property  of  such  slight  value  as  not  to  authorize  this 
punishment  under  the  local  law  would  not  warrant  a  sentence  of  confinement  in  a  pen- 
itentiary. In  a  case  of  larceny  the  court  should  inform  itself  as  to  whether  the  value  of 
the  property  stolen  be  not  too  small  to  permit  of  penitentiary  confinement  for  the  offense 
under  the  law  of  the  State,  etc.     Ibid.,  par.  13. 

'  Ji/x  parte  Mason,  105  U.  S..  696;  Manual  for  Courts- martial,  p.  52,  paragraphs 
14  and  15.  .\  court-martial,  in  imposing  by  its  sentence  the  punishment  of  confinement 
in  a  penitentiary,  is  not  required  to  follow  the  statute  of  the  United  States  or  of  the 
State,  etc  ,  as  to  the  term  of  the  confinement.  It  may  adjudge,  at  its  discretion,  a  less 
or  a  greater  term  than  that  affixed  by  such  statute  to  the  particular  offense.  At  the  same 
time  the  court  will  often  do  well  to  consult  the  statute,  as  indicating  a  reasonable  meas- 
ure of  punishment  for  the  offense.     Dig.  J.  A.  Gee.    114,  par.  8. 

*  In  a  case  of  larceny  the  court  should  inform  itself  as  to  whether  the  value  of  the  property  stolen 
be  not  too  small  to  permit  of  penitentiary  confinement  for  the  offense  under  the  local  law.  See  G.  O. 
44,  Eighth  Army  Corps,  186-.'  ;  G.  C.  .M.  O.  63,  Dept.  of  the  Platte,  1873. 


PUNISIIMENTB.  171 

order  of  promulgation.  Sucli  coufiuemeut  does  not  partake  of  the  nature 
of  a  military  arrest,  and  a  failure  to  observe  the  limits  specified  in  the  sen- 
tence would  be  chargeable  under  the  G2d  Article  of  War.'  Nor,  on  the 
other  hand,  does  such  restriction  involve  any  of  the  statutory  consequences 
incident  to  imprisonment,  or  confer  incapacity  to  testify,  as  would  confine- 
ment in  a  state  prison  or  penitentiary.' 

Suspension. — Three  of  the  elements  which  go  to  make  up  the  legal 
status  of  a  commissioned  officer,  rank,  command,  and  pay  may  be  reached 
by  a  sentence  of  suspension,  and  one  or  more  than  one  of  these  elements 
may  be  affected  by  the  same  sentence.  "  The  punishment  of  suspension,  as 
imposed  by  sentence,  is  usually  in  the  form  of  a  suspension  from  rank  or 
from  command  for  a  stated  term,  sometimes  accompanied  by  a  suspension 
from  pay  for  the  same  period.  Suspension  from  rank  includes  suspension 
from  command."  '" 

Suspension  from  Rank  or  Command. — The  effect  of  a  suspension  from 
rank  is  to  detach  tiie  officer  from  the  performance  of  the  duties  incident  to 
liis  rank  or  office  in  the  military  service,  and  to  deprive  him  of  the  right  to 
proynotion  to  a  vacancy  in  a  higher  grade  occurring  pending  the  term  of 
suspension  and  which  he  would  have  been  entitled  to  receive  by  virtue  of 
seniority  had  he  not  been  suspended;  such  right  accruing  to  the  officer  next 
in  rank.*  But  no  such  loss  of  promotion  is  incident  to  a  mere  suspension 
from  command.^  Suspension  from  rank  does  not,  however,  deprive  the 
officer  of  the  right  to  rise  in  files  in  his  grade, — upon  the  promotion,  for 
example,  of  the  senior  officer  of  such  grade." 

A  suspension  from  rank  does  not  affect  the  right  of  the  officer  to  his 
office;  which  he  retains  the  same  as  before,  and,  as  an  officer,  remains  sub- 
ject to  military  control  as  well  as  to  the  jurisdiction  of  a  court-martial  for 
any  military  offense  committed  pending  the  term  of  suspension.' 

Suspension  from  rank  or  command  does  not  involve  a  loss  of  pay  or 
authorize  a  stoppage  thereof  during  the  period  of  suspension."     Pay  cannot 

'  It  has  been  seen  that  suspension  from  rank,  as  such,  does  not  involve  a  status  of 
confinement  or  arrest.  In  sentencing  an  officer  to  be  suspended  from  rank,  it  is  not 
unusual,  however,  for  the  court  to  require  that  he  be  confined  during  the  term  of 
suspension  to  his  proper  station,  or  that  of  his  regiment,  etc.,  i.e.,  that  the  sentence  be 
executed  there.     Dig,  .J,  A.  Gen..  730,  par.  6, 

-  See  the  chapter  cniiiled  Evidence. 

'  Dig   J.  A,  Gen..  729.  par.  1. 

*  Ihid.,  "t'M),  par,  3  ;  see,  also,  ibid  ,  617,  par.  4. 
'  Ibid.,  730.  par.  3. 

*  Ihid.,  617,  liar.  4.  The  number  of  an  officer  in  the  list  of  his  grade  is  not  an  inci- 
dent of  his  rank,  but  of  his  appointment  to  office  as  conferred  and  dated,  and,  as  we 
have  seen,  suspension  does  not  affect  the  office.  Moreover,  loss  of  files  is  a  continuing 
punishment,  and  if  held  to  be  involved  in  suspension  from  rank,  the  result  would  be 
that,  for  an  indefinite  period  after  the  term  of  suspension  had  expired,  the  officer  would 
remain  under  punishment,  the  sentence  imposed  by  the  court  being  i\in?>  added  /*>  io 
execution,  contrarv  to  a  well-known  principle  of  militarv  law.     Ibid. 

'  Ihid.,  729,  par.  2  ;  5  Opin.  Att.-Gen.,  740  ;  6  Ibid.,  715. 

*  Ibid.,  731,  par.  7  ;  4  Opin.  Alt.-Geu.,  444 ;  6  idem,  203. 


172  MILITARY  LAW. 

be  forfeited  by  implication.  Unless,  therefore,  the  sentence  imposes  a  sus- 
pension from  rank  (or  command)  "  and  pay,"  or  in  terms  to  that  effect, 
the  suspended  officer  remains  as  much  entitled  to  his  pay  as  if  he  had  not 
been  suspended  at  all,  and  to  require  him  to  forfeit  any  pay  would  be 
adding  to  the  punishment  and  therefore  illegal,' 

It  is  further  the  effect  of  a  suspension  from  rank  that  the  officer  loses  for 
the  time  the  minor  rights  and  privileges  of  priority  and  precedence  annexed 
to  rank  or  command.  Among  these  is  the  right  to  select  quarters  relatively 
to  other  officers.  And  where  quarters  are  to  be  selected  by  several  officers, 
one  of  whom  is  under  sentence  of  suspension  from  rank,  the  suspended 
officer  necessarily  lias  the  last  choice;  or,  rather  he  has  no  choice,  but 
quarters  are  assigned  him  by  the  commander ;  for,  being  still  an  officer  of 
the  army,  though  without  rank,  he  is  entitled  to  some  quarters.' 

Suspension  from  rank  does  not  involve  a  status  of  confinement  or  arrest. 
In  sentencing  an  officer  to  be  suspended  from  rank,  it  is  indeed  not  unusual 
for  the  court  to  require  that  he  be  confined  during  the  term  of  suspension 
to  his  proper  station  or  that  of  his  regiment,  etc.,  i.e.^  that  the  sentence  be 
executed  there.' 

While  the  suspended  officer  is  not  entitled  to  a  leave  of  absence,  it 


'  Dig.  J.  A.  Gen.,  731,  par.  7  A  sentence  of  su.spension  from  rank  and  pay  does 
not  aflfect  the  right  of  the  oflBcer  to  the  allowances  which  are  no  part  of  his  pay  * — as  the 
allowance  for  rent  of  quarters,  as  also  the  allowance  for  fuel,  or  rather  right  to  purchase 
fuel  at  a  reduced  rate.     Ibid.,  par.  9. 

In  rare  cases  the  form  "to  be  suspended  from  the  service"  has  been  employed  in 
the  sentence.  Such  a  suspension  is  equivalent,  in  substance,  to  a  suspension  from  rank. 
A  still  rarer  form,  "to  be  suspended  from  duty,"  has  been  deemed  to  be  practically 
equivalent  to  a  sentence  of  suspension  from  command,  and  would  still  be  appropriate  in 
the  case  of  an  officer  holding  a  position  involving  the  performance  of  administrative 
duties,  as  distinguished  from  actual  military  command,  as  is  the  case  of  officers  of  the 
staff,  to  whose  positions  in  the  service  military  command,  as  such,  is  not  attached. 
Ibid  ,  732,  par.  12.  Suspension  from  duty,  as  distinguished  from  suspension  from  rank, 
is  a  recognized  punishment  in  the  naval  service.  Navy  Regulations,  1896,  par.  1850; 
Harwood,  134,  135.  The  form  "to  be  suspended  from  rank  and  duly"  occurs  in  G. 
C.  M.  O.  19.  of  1885 

*  Dig.  J.  A.  Gen.,  730,  par.  5.  But  adiised  that  an  officer  sentenced  to  be  sus- 
pended from  rank  could  not  becau.se  of  such  suspen.sion  alone  be  deprived  of  quarters 
previously  duly  selected,  and  occupied  at  the  time  of  the  suspension  ;  such  a  sentence 
not  affecting  a  right  previously  accrut  d  anri  vested.  Ibid.  Under  existing  usage  (1892) 
an  officer  suspended  by  sentence  from  rank  and  command  is  deemed  entitled  to  retain 
his  quarters.  But  such  rule  may,  in  some  cases,  work  a  considerable  inconvenience 
as  well  as  prejudice  to  discipline  ;  as  where,  for  example,  the  suspended  officer  is  a 
post  commander,  and,  pending  the  term  of  his  suspension  and  while  another  officer 
has  succeeded  him  as  commander,  continues  to  occupy  tJie  proper  conmiandinL''  officer's 
quarters.  An  army  regulation  prescribing  that  an  officer  in  such  a  status  shall  not  be 
entitled  to  retain  or  to  select  quarters  liy  virtue  of  rank,  but  shall  have  assigned  him 
uny  quarters  th;it  are  available  at  his  late  station  or  elsewhere,  advised  as  desirable  to 
be  adopted.     Ibid.,  733,  par.  17. 

Under  the  riiling  of  the  Secretary  of  War,  as  published  in  Oirc.  No.  3  (H.  A.),  1888, 
an  officer  under  suspension,  but  not  required  by  his  sentence  to  be  "  confined  to  the 
limits  of  his  post,"  is  not  entitled  to  forage  for  his  horse  or  horses  during  the  term  of  bis 
suspension.     Ibid.,  par.  18. 

2  Ibid..  730,  par.  6. 


rUNLSJIMhNTS.  173 

cannot  affect  the  execution  of  his  sentence  to  grant  him  one,  and  leaves  of 
absence  are  not  iiiifrequently  granted  under  such  circumstances.' 

The  status  of  an  ofiicer  under  suspension  is  the  same  whether  such  sus- 
pension lias  been  imposed  directly  by  sentence  or  by  way  of  commutation 
for  a  more  severe  punishment.  Thus  where  a  sentence  of  dismissal  was 
commuted  to  suspension  from  rank  on  half-pay  for  one  year,  it  has  been 
held  that  the  officer,  while  forfeiting  the  rights  and  privileges  of  rank  and 
command  during  such  terra,  was  yet  amenable  to  trial  by  court-martial  for 
a  military  offense  committed  pending  the  same.' 

Suspension  of  Pay.  —  Where,  however,  the  suspension  is  in  terms 
extended  by  the  sentence  to  pay,  the  pay  is  forfeited  absolutely,  not  merely 
withheld.  And  all  the  pay  is  forfeited  unless  otherwise  expressly  indi- 
cated in  the  sentence.  The  forfeiture  imposed  by  a  sentence  of  suspension 
from  rank  (or  command)  and  pay  for  a  designated  term  is  a  forfeiture  of 
the  pay  of  that  specific  term,  the  suspension  of  the  rank  and  that  of  the 
pay  being  coincident.' 

When  Operative. — Like  dismissal,  suspension  takes  effect  upon  and  from 
notice  of  the  approval  of  the  sentence  officially  communicated  to  the  officer, 
either  by  the  promulgation  of  the  same  at  his  station  or,  where  he  is 
absent  therefrom  by  authority,  by  the  delivery  to  him  of  a  copy  of  the 
order  of  approval  or  other  form  of  official  personal  notification  of  the  fact  of 
the  approval.* 

Termination  of  Sentence. — Suspension  not  divesting  the  officer  of  his 
office  or  commission,  but  simply  holding  in  abeyance  the  rights  and  func- 
tions attached  to  his  rank  or  command,  he  properly  reverts,  when  the  term 
of  the  punishment  is  completed,  to  his  former  rank  and  the  command 
attached  thereto,  and  continues  to  hold  and  exercise  the  same  as  before  his 
arrest  or  trial.' 

Where  an  officer,  when  under  a  sentence  of  snsj)ension,  is  ordered  by  the 
commander  who  approved  the  sentence,  or  some  higher  competent  authority, 
to  resume  his  command  or  the  performance  of  his  regular  military  duty, 
such  order  will  in  general  operate  as  a  constructive  remission  of  the  punish- 
ment and  thus  terminate  the  suspension." 

'  Dig.  J.  A.  Gen.,  730,  par.  12.  Leave  of  absence  is  an  indulgence  which  may  be 
granted  or  refused  at  the  discretion  of  the  authority  empowered  by  law  and  regulations 
to  grant  it.     It  is  never  deniandable,  as  a  mutter  of" right,  bv  any  officer. 

■^   nig.  J.  A   Gen..  731,  par.  10  ;  ibid.,  733.  par.  19. 

'  Dig.  J.  A.  Gen.,  731.  par.  8.  Under  such  a  sentence  the  officer  cannot  legally  be 
deprived  of  pay  due  for  a  period  prior  to  the  su.epen.siou.  Where  an  otflcer  was 
sentenced  to  suspension  from  rank  and  pay  for  si.x  months,  field  that  his  entire  pay  for 
those  months  was  absolutely  forfeited  notwithstanding  that  the  pay  of  officers  of  his 
grade  was  increased  by  statute  pending  the  term.     Ibt'd      See,  also,  Jbid.,  733,   par.   19. 

♦  Jbid..  732,  par.   14. 

^  Ibid.,  733,  par.  16.  Sullivan,  who  (p.  88)  traces  this  punishment  to  "the  eccle- 
siastical jurisdiction,  which  admitted  suspension  as  a  minor  excommunication,"  adds, 
in  regard  to  the  officer  sentenced:  "At  the  expiration  of  the  term  of  suspension  lie 
becomes  a  perfect  man  again.' 

•  Dig.  J.  A.  Gen.,  732.  par.  11. 


174  MILITARY  LAW. 

Suspension  of  Cadets. — Suspension  may  be  awarded  as  a  punishment  in 
the  case  of  a  cadet  at  the  Military  Academy;  the  form  "  to  be  suspended 
from  the  Military  Academy  "  being  usually  employed  in  the  sentence.  The 
operation  of  such  a  sentence  would  be  to  detach  the  cadet  temporarily 
from  duty  at  the  Academy  during  the  period  of  such  suspension.  It  is 
usually  added  in  such  a  sentence  that  '  at  the  end  of  such  term  of  suspen- 
sion the  cadet  is  to  join  the  next  lower  class.'  ' 

Reduction  in  Rank.^ — Loss  of  or  reduction  in  files  or  steps  {i.e.,  relative 
rank)  in  the  list  of  the  officers  of  his  grade  is  a  recognized  legal  punish- 
ment by  sentence  of  court-martial  in  a  case  of  a  commissioned  officer. 
Like  disqualification,  it  belongs  to  the  class  of  continuing  punishments.^ 

The  effect  of  this  punishment  is,  by  reducing  the  officer  in  rank,  to 
deprive  him  of  such  relative  right  of  promotion  and  command,  as  well  as  of 
precedence  on  courts  or  boards  and  in  selecting  quarters,  etc.,  as  he  would 
have  had  had  he  remained  at  his  original  number.  Such  effect  continues 
till  the  sentence  is  remitted.  But  this  punishment  cannot  /;er  se  affect  the 
officer's  right  to  pay." 


*  Dig.  J.  A.  Gen.,  732,  par.  13.  Suspension  does  not  affect  pay  unless  expressly  for- 
feited in  the  sentence  ;  nor  does  a  commutation  of  dismissal  to  suspension  affect  pay. 
When,  therefore,  a  sentence  of  dismissal  in  the  case  of  a  cadet  was  commuted  to  suspen- 
sion for  one  year,  held  that  he  was  entitled  to  full  pay  during  the  year  of  suspension. 
Ibid.,  783,  par.  19. 

»  12  Opin.,  Att.-Gen.,  547;  Dig.  J.  A.  Gen.,  482,  par.  1. 

'  Ibid.,  483,  par.  3.  Where  a  court-martial  convened  by  a  department  cornmander 
for  the  trial  of  an  officer  sentences  the  accused,  upon  conviction,  to  the  punishment  of 
a  loss  of  files  or  steps  in  the  list  of  officers  of  his  rank,  the  approval  of  the  commander  is 
sufficient  to  give  full  effect  to  the  sentence,  and  no  action  by  superior  authority  can  add 
anything  to  its  effect  or  conclusiveness.  The  code  does  not,  as  in  the  case  of  a  sentence 
of  dismissal,  render  a  confirmation  by  the  President  essential  to  the  execution  of -such 
a  punishment,  and  the  fact  that  the  same  involves  a  change  in  the  Army  Register  does 
not  make  requisiteor  proper  a  revision  of  the  case  at  the  War  Department.  All  that  is 
called  for  upon  the  approval  of  such  a  sentence  by  the  commander  is  simply  to  notify 
the  Secretary  of  War  thereof  by  forwarding  a  copy  of  the  General  Order  promulgating 
such  approval.  The  proceedings  (or  their  substance)  as  affecting  officers  other  than  the 
accused  may  then  well  be  republished  in  General  Orders  from  the  Adjutant-General's 
Office.     Ibid. ,  482,  par.  2. 

This  punishment  has  sometimes  been  remarked  upon  as  an  objectionable  one. 
apparently  maiidy  on  account  of  the  inequality  of  its  effect  upon  other  officers  of  the 
grade  of  the  officer  sentenced.  Thus  where  an  officer  is  reduced  a  certain  number  of 
files,  those  below  whom  he  is  placed  are  advanced,  while  those  below  himself  gain 
nothing.  Where  he  is  reduced  to  the  foot  of  the  list  this  objection  does  not  apply;  this 
form  of  the  punishment,  however,  where  the  li.st  is  a  long  one  is  extreme  and  severe; 
more  severe,  often,  than  suspension  for  a  fixed  term.  Ibid.,  483,  par.  4.  See  G.  C.  M.  O. 
25.  War  Dept.,  1873;  do.  2,  Dept.  of  Dakota,  1873. 

A  second  lieutenant  was  sentenced  "  to  retain  his  present  number  on  the  lineal 
list  of  second  lieutenants  for  three  years."  Held  that  this  sentence  necessarily  deprived 
him  of  all  right  to  promotion  so  long  as  it  contimied  in  force,  and  rendered  him  for  so 
long  ineligible  for  examination  under  the  Act  of  October  1,  1890.  Lieutenants  junior  to 
him  mav  be  advanced  without  any  regard  to  him  and  precisely  as  if  he  were  not  on  the 
list  at  all.  The  promotion  of  an  officer  in  such  a  status  would  have  the  effect  of  a 
pardon.     Ibid.,  par.  5. 

A  lieutenant  was  sentenced  "  to  be  reduced  two  files  in  regimental  rank."  As  the 
regimental  rank  of  a  line  officer  is  the  basis  of  his  rank  in  his  arm  and  in  the  army  at 
large,  held  that  his  reduction  on  the  regimental  list  involved  a  corresponding  reduction 
on  the  lists  of  lineal  and  relative  rank.     Ibid.,  484,  par.  6. 


P  UNISUMENTS.  1 T  5 

Reduction  to  the  Ranks, — By  several  statutes '  enacted  during  the  con- 
tinuance of  the  War  oi"  the  Kebellion  the  punishment  of  reduction  to  the 
ranks  was  authorized  to  be  inflicted  upon  commissioned  officers.  This 
punishment,  inasmucli  as  it  operated  to  divest  the  accused  of  his  oflice,  was 
in  effect  a  dismissal;  the  status  of  an  enlisted  man,  in  which  the  officer  was 
placed,  was  anomalous,  since  he  occupied  it,  not  voluntarily,  but  as  a  result 
of  the  sentence  imposed  and  by  operation  of  law.  It  is  no  longer  legal,  and 
cannot  hereafter  be  imposed  unless  exj)res8ly  authorized  by  statute;  the 
statutory  provisions  indicated  being  impliedly  confined  in  their  application 
to  the  period  of  the  late  war  (or  for  a  limited  period  succeeding  the  same), 
and  not  being  re-enacted  in  the  Revised  Statutes.'"" 

Fines. — While  punishments  in  the  nature  of  fines  are  not  frequently 
imposed  by  sentences  of  courts-martial,  for  the  reason  that  punishments  in 
the  nature  of  pecuniary  penalties  are  in  general  made  the  subject  of  for- 
feitures of  pay,  or  of  suspensions  from  pay  for  specific  periods,  they  have 
been,  and,  in  a  proper  case,  may  still  be,  imposed  in  such  sentences.' 

An  officer,  as  tlie  result  of  two  successive  trials  by  couit-niartial,  stood  sentenced  to 
be  reduced  to  the  foot  of  the  list  of  lieutenant-colonels  of  cavalry,  and  to  remain  there 
without  advancement  for  two  years.  Held  that  such  a  sentence  was  a  legal  one,  and 
that  as  the  officer  had  no  rank  in  the  army  independent  of  his  rank  in  the  cavalry  arm. 
the  former  rank  beinir  incidental  to  and  measured  by  the  latter,  his  relative  army  rank 
was  necessarily  atTected  by  the  sentence  in  the  same  manner  as  his  lineal  rank.  Dig. 
J.  A.  Gen.,  484,  par.  7.  In  the  execution  of  his  sentences  this  officer  had  lost  four  tiles 
in  his  grade  by  the  promotion  over  him  of  four  majors.  Held  that  his  status  was 
equivalent  to  that  of  an  officer  sentenced  to  lose  files  for  two  years,  and  that  his  sentence 
was  a  continuing  punishment,  subject  to  be  discontinued  by  pardon.     Ibid. 

A  sentence  of  a  tirst  lieutenant  "to  be  reduced  in  rank  so  that  his  name  shall  appear 
in  the  Army  Register  ne.vt  below  the  name  of"  a  certain  other  first  lieutenant  of  his 
regiment,  held  not  a  punishment  executed  upon  approval,  so  as  to  be  beyond  remission, 
but,  like  a  sentence  "to  lose  tiles,"  a  continuing  punishment  removable  by  pardon.* 
Ibid.,  par.  8. 

In  1874  an  officer,  then  a  first  lieutenant,  was  sentenced  "to  be  reduced  in  rank  so  that 
his  name  should  thereafter  be  borne  on  the  rolls  of  the  army  next  after  that  of  "  a  certain 
other  first  lieutenant  of  the  same  regiment.  This  officer  was  promoted'  to  a  captaincy 
May  10.  1888,  and  the  officer  under  sentence  was  similarly  promoted  August  20.  1889. 
Upon  an  application  by  the  latter  (July,  1890)  to  have  his  sentence  remitted,  held  that 
by  the  operation  of  the  first  of  these  promotions  the  sentence  was  rendered  irrevocable. 
A  remission  or  pardon  would  not  at  this  time  restore  the  officer  to  the  position  he 
occupied  prior  to  the  sentence,  nor  divest  the  rights  of  others  acquired  by  promotion 
during  the  pendency  of  his  reduction.  The  sentence  had  indeed  been  fully  executed 
and  was  therefore  beyond  the  reach  of  the  pardoning  power.     Ibid.,  par.  9. 

•  Sec.  22.  Act  of  March  8,  1863  (12  Stat,  at  Large,  735) ;  Sec.  6,  Act  of  March  13, 
1863(12i^>id.,  821). 

*  Dig.  J.  A.  Gen.,  653.  Cases  of  officers  sentenced  to  this  punishment  upon  convic- 
tion under  the  first-named  statute  are  published  in  G.  O.  27,  War  Dept.,  1864  ;  do.  80, 
Depi.  of  tiie  Gulf,  1863;  do.  H8.  Dept.  of  the  East,  1864;  do.  36,  Middle  Dept..  1864; 
do.  5,  2d  Div.,  5th  Army  Corps,  1864  ;  G.  C.  M.  O.  25,  51,  Army  of  Potomac,  1864  :  do. 
12  id.,  1865.  No  instance  has  been  met  with  of  the  imposition  of  this  punishment  upon 
a  conviction  under  the  latter  statute.  In  some  few  cases,  during  the  late  war,  this  punish- 
ment was  adjudged — illegally — for  offenses  other  than  those  specified  in  the  acts 
designated  in  the  text. 

*"The  only  fine  known  to  military  law  is  the  fine  authorized  to  be  imposed  by  way  of 
punishment  by  sentence  of  court-martial.     No  military  commander  is  empowered  undei 


*  12  Opius.  Att  -Gen.,  547;  17  id.,  17,  656. 


176  MILITARY  LAW. 

Sentences  of  imprisonment  till  a  fine,  also  imposed  by  the  sentence,  is 
paid  are  sanctioned  by  the  usage  of  the  service.  It  is  proper,  however,  in 
such  sentences  to  affix  a  limit  beyond  which  the  piuiishment  shall  not  be 
continued  in  any  event.  Where  a  sentence  adjudges  a  fine,  without  also 
adding  (with  a  view  to  enforcing  its  payment)  a  term  of  confinement, 
such  a  confinement  cannot  of  course  legally  be  imposed  by  the  military 
commander.' 

Fines  adjudged  by  courts-martial  accrue  to  the  United  States.  A 
court-martial  cannot  impose  a  fine  for  the  benefit  of  an  individual,  nor  can 
a  fine  adjudged  in  general  terms  be  in  any  part  appropriated  for  the  benefit 
of  an  individual  by  executive  authority.  A  court-martial,  in  sentencing  a 
party  to  pay  a  fine,  has  no  authority  to  direct  the  collection  of  the  same  by 
a  provost-marshal,  or  by  any  compulsory  process;  such  a  direction  added  in 
a  sentence  should  be  disregarded  as  mere  surplusage." 

auy  circumst.'uices  to  impose  w.  fine  upon  an  officer  or  ii  soldier.  Di<i;.  J.  A.  Gen.,  414, 
par.  1.  The  terms  '  fine  "  and  "  forfeiture  "  as  used  in  military  law  are  not  synonymous. 
A  fine  is  a  pecuniary  penalty,  imposed  by  the  sentence  of  a  court-martial,  the  operation 
of  which  is  to  require  an  offender  to  i)ay  a  specific  sum  to  the  United  States  by  way 
of  punishment  for  an  offense.  The  sentence  is  executed  when  the  sum  therein  specified 
has  been  paid  to  and  received  by  the  United  States.  A.  forfeiture  is  a  deprivation  of 
pay  or  allowances  awarded  by  sentence  of  a  court-martial,  or  imposed  by  law  on 
conviction  of  a  military  offense.  A  fine  bears  no  relation  to  the  pay  of  the  offender; 
a  forfeiture,  on  the  other  hand,  is  restricted  to  and  can  never  exceed  the  total  of  such 
pay  and  allowances,  due  or  to  become  due  during  the  period  of  its  operation.  A  for- 
feiture, therefore,  operates  to  retain  from  the  offender,  and  deprive  him  of  the  possession 
of,  the  whole  or  a  part  of  his  cuirent  pay  or  allowances  during  a  period  of  time  expressly 
set  forth  in  the  sentence.  A  fine  or  forfeiture  imposed  by  the  sentence  of  a  military 
tribunal  may  be  remitted  by  the  proper  reviewing  authority,  and  if  it  has  not  been 
deposited  in  the  treasury  may  be  restored  by  way  of  pardon  or  mitigaticin.* 

A  fine  is  distinguished  from  a  "stoppage."  The  former  is  a  puJiinhment  and  there- 
fore imposable  oidy  by  court-martial.  The  latter  is  a  charge  on  dccount,  being  an  enforced 
reimbursement,  by  means  of  a  debit  entered  against  the  pay  of  the  iiarty  on  the  rolls,  either 
for  an  amount  due  the  United  States— as  for  the  value  of  pul)lic  property  lost,  extra 
clothing  issued,  reward  paid  for  apprehension  as  a  deserter,  etc. —or  for  an  amount  due 
an  individual  and  expressly  authorized  by  law  or  regulation  to  be  thus  charged  See  par. 
1.390,  Army  Retnilatioiis  o"f  189.5.  Any  stoppage,  indeed,  to  be  legally  executed  must  be 
spec'ifically  enjoined  by  statute  or  a\ithorized  regulation.     Ibid.,  par.  2. 

-  Ibid.,  440,  par.  4.  So,  held  {hai  \nu-.  2  of  G.  O.  61,  War  Department,  1865.  to  the 
effect  that  where  a  coun-martial,  in  imposing  a  fine,  has  failed  to  require  that  the 
pri-soner  shall  be  confined  till  tlie  fine  is  paid,  "he  will  not  be  released  without  orders 
from  the  War  Department  except  on  payment  of  the  fine,"  transcended  the  authority 
of  an  executive  order  ;  svich  a  requirement  being  a  punishment,  which  can  be  prescribed 
onlv  bv  sentence  of  court-martial.     Ibid. 

■^  Ibid.,  414.  par.  o.  Where  an  officer,  sentenced  (in  connection  with  disnussal)  to 
the  pavmem  of  a  fine  and  to  imprisonment  till  the  fine  was  paid,  and  held  for  sf)me  time 
in  confinement  by  reason  of  the  non-payment  of  the  fine,  applied  to  be  released  on  the 
ground  that  he  was  quite  destitute  of  means  and  incapable  of  .satisfying  the  amount  of 
the  fine,  suggested  that,  in  order  to  protect  the  Government  from  fraud,  the  procedure 
prescribed  by  Sec.  1042,  Rev.  Sts.,  in  cases  of  "poor  convicts,"  imprisoned  under 
sentences  of  United  States  courts,  be  in  substance  followed,  and  that  the  prisoner  be  not 
released  except  upon  an  investigation  as  to  his  pecuniary  ability  by  a  proper  officer,  and, 


*  The  impo.sition  of  fines,  as  such,  is  not  frequent  in  the  practice  of  courts-martial.  They  are 
properly  imposed,  however,  upon  oonviotion  of  offenses  in  the  nature  of  larceny  or  embezzlement,  in 
which  case  they  are  made  equal  In  amouiiT  to  tlie  sum  embezzled  or  the  value  of  the  property 
convertt-d.  In  such  cases  the  seuieiice  provides  tliat  the  offender  be  imprisoned  until  the  fine  is  paid. 
See  G.  C.  M.  O.  31,  War  Department,  ISTI. 


PUNISIIMEM'S.  1T7 

Forfeitures. — Forfeitures  are  pecuniary  penalties  wliicli  become  opera- 
tive (a)  bv  operation  of  law,  upon  conviction  of  certain  military  olTenses, 
or  {b)  in  conformity  to,  and  in  execution  of,  the  sentence  of  a  lawfully  con- 
stituted military  tribunal.  "  A  court-martial,  in  forfeiting  pay  by  sentence,  . 
should  so  fix  the  amount  to  be  forfeited  that  the  same  will  clearly  and 
unmistakably  appear  from  tlie  sentence  itself,  without  a  reference  to  any 
order  or  other  source  of  information  being  necessary."  ' 

Pay  cannot  be  forfeiteil  (in  a  sentence)  by  implication.  If  the  court 
intends  to  forfeit  pay,  the  penalty  of  forfeiture  should  be  adjudged  in 
express  terms  in  the  sentence.'  No  other  punishment  imposable  by  court- 
martial — neither  a  sentence  of  death,  dismissal,  suspension,  dishonorable 
discharge,  nor  imprisonment — involves  per  se  a  forfeiture  or  deprivation  of 
any  part  of  the  pay  or  allowances  due  the  party  at  the  time  of  the  approval 
or  taking  effect  of  the  sentence.'     Nor  can  pay  *  be  forfeited  by  any  miscon- 


if  found  to  be  iiuligeiit  as  represented,  upon  his  written  stiitenieiit  under  oath  that  he 
was  wholly  incapable  of  paying  or  procuiing  the  means  to  pay  any  part  of  the  tine. 
Dig.  J.  A."  Gen.,  41;1,  par.  5. 

An  officer  on  trial  applied  to  have  certain  witnesses  summoned  from  a  distance,  and  a 
continuance  granted  to  await  their  api»earance.  To  this  the  court  consented  on  hisniaking 
an  atlidavit  setting  forth  niateriMl  matter  expected  to  be  established  by  the  witnesses. 
When  these  appeared  it  wus  found  tiial  they  could  give  no  material  testimony  upon  the 
l)oints  indicated  in  the  atrnlnvit.  The  court," in  making  up  its  sentence  upon  conviction, 
proposed  U)  impose  upon  the  accused  (in  connection  with  imprisonment)  n  fine  of  two 
hundred  dollars  as  the  estimated  cost  to  the  government  of  procuring  the  attendance 
of  tiie  said  witnesses.  Advised  that  the  facts  stated  did  not  constitute  a  proper  biisis  tor 
the  imposition  of  such  line  as  a  punisliment  for  the  offense  for  which  the  officer  was  con- 
victed ;  that  if  his  conduct  in  the  matter  was  deemed  so  culpable  as  to  constitute  a 
military  offense,  it  sliould  be  made  the  subject  of  a  separate  cliarge  to  be  investigated  on 
a  separate  trial.     Ibid.,  414.  i)ar.  4. 

'  Ihid..A\l,  par.  1.  So /(ei!r/ that  a  .sentence  which  requited  a  soldier  to  forfeit  an 
amount  of  pay  sufficient  to  reimburse  the  United  States  for  the  value  of  certain  property 
appropriated  "by  him.  without  ti.ving  the  value  of  such  property,  w:is  iriegular,  and 
might  properly  be  disapi>roved  unless  corrected  by  the  court  on  being  reassembled 
for  a  revision /**     Ibid. 

A  sentence  forfeiting  •'  pay  "  or  "  pay  and  bounty  "  does  not  affect  the  rigi)t  of  the 
accused  to  a  pecuniary 'allowa"nce— as,  for  example,  an  allowance  due  him  for  clothing 
not  drawn.     Ibid.,  418,  par.  '■^. 

A  forfeiture,  by  sentence,  of  "  pay  and  allowances,"  while  it  does  not  affect  the  right 
of  the  soldier  to  receive,  during  his  term  of  enlistment,  the  usual  allowance  of  clothing 
in  kind,  forfeits  any  pecuniary  allowance  that  maybe  due  the  .'soldier  on  account  of 
clothing  not  drawn.      Ibid.,  par.  4. 

A  sentence  of  forfeiture  of  *'  all  pay  and  allowances"  includes  and  forfeits  "  e.vtra- 
dutv  pay."     Ibid. 

5  Coinpiire  Elliott  va.  Railroad  Co..  9  Otto,  573. 

=  This  principle  is  well  illustrated  by  the  opini(ni  of  the  Attorney-General  (13  Opius.. 
103),  concurring  with  an  opinion  of  the  Judge-Advocate  General,  in  the  case  of  Major 
Herod,  where  it  was  helil  that  the  fact  that  the  accu.sed  had  been  .sentenced  to  death,  ou 
conviction  of  murder,  did  not  affect  his  right  to  his  pay  from  the  date  of  his  arrest  to  that 
of  the  tinal  action  taken  on  the  sentence  by  the  President.  And  see  the  more  recent  opin- 
ion of  the  .Vttorney  General  of  November  9,  187(}.  (15  Opins.,  175.)  to  the  effect  that  the 
pay  of  officers  aid  seamen  of  the  navy  is  not  dive.sted  by  the  operation  of  sentences  of 
imprisonment  or  suspension,  but  only  when  forfeited  in  specific  and  express  terms  in 
the  sentence.  See,  also.  Dig.  J.  A.  Gen.,  417.  jnir.  '2. 
*  Other  than  "  retaiuecl  pay,"  see  par.  1369,  A.  li.  1895. 


•  CoDipare  case  in  G.  C.  M.  O.  65,  Dept.  of  Dakota,  1380. 


178  MILITARY  LAW. 

duct  of  a  soldier,  however  grave,  except  for  desertion  or  absence  without 
leave,  unless  he  is  brought  to  trial  and  expressly  sentenced  to  forfeiture  for 
the  same.' 

Pay  forfeited  by  sentence  of  court-martial  can  accrue  to  the  United 
States  only.  A  sentence  cannot  forfeit,  appropriate,  or  "stop"  pay  for 
the  reimbursement  or  benefit  of  an  individual,  civil  or  military,  however 
justly  the  same  may  be  due  him,  either  for  money  borrowed,  stolen,  or 
embezzled  by  the  accused,  or  to  satisfy  any  other  pecuniary  liability  of  the 
accused  whether  in  the  nature  of  debt  or  damages;  nor  can  a  sentence  for- 
feit pay  for  the  support  or  benefit  of  the  family  of  the  accused,  or  for  the 
benefit  of  a  company  fund,  post  fund,  hospital  fund,  etc.,  none  of  these 
funds  being  money  of  the  United  States.  All  forfeitures  by  sentence, 
whether  or  not  so  expressed  in  terms,  are  to  be  understood  and  treated 
as  forfeitures  to  the  United  States  accruing  to  the  general  treasury.'' 

"Where  a  sentence  imposes  a  forfeiture  of  the  "  monthly  "  pay  or  a  part 
of  the  "  monthly  "  pay  of  a  soldier  for  a  designated  number  of  months,  the 
sum  forfeited  is  the  amount  indicated  multiplied  by  the  number  of  months. 
Thus  where  the  sentence  of  a  soldier  imposed  a  confinement  for  eight 
months  with  a  forfeiture  of  eight  dollars  of  his  monthly  pay  for  the  same 
period,  the  sum  forfeited  was  not  eight  but  sixty-four  dollars.' 

Stoppages. — The  terms  "  forfeiture  "  and  "  stoppage  "  are  not  synony- 
mous. A  forfeiture^  as  has  been  seen,  is  a  pecuniary  penalty,  in  the  nature 
of  a  fine,  imposed  by  a  court-martial  by  way  of  punishment  for  a  military 
offense.  Forfeitures  are  usually  based  upon,  and  taken  or  deducted  from, 
the  pay  of  officers  and  enlisted  men,  and  accrue  in  every  case  to  the  United 
States.  Stoppages  are  administrative  deductions  from  the  pay  or  allowances 
of  officers  or  enlisted  men,  made  in  pursuance  of  authority  expressly  con- 
ferred by  statute  or  regulation,  with  a  view  to  reimburse  the  United  States 

1  Dig.  J.  A.  Gen.,   417,  par.  2. 

'  Ibid.,  418,  par.  5.  lu  a  case  of  a  forfeiture,  by  sentence,  of  "  pay  due"  or  "pay 
due  and  to  become  due,"  the  amount  of  pay  due  and  payable  to  the  party  at  the  date 
of  the  approval  of  the  sentence  is,  in  contemplation  of  law,  returned  from  the  appro- 
priation for  tiie  Army  to  the  general  treasury  and  becomes  public  money,  and,  being 
in  the  treasury,  cannot,  without  a  violation  of  Art.  I,  Sec.  9,  |  6,  of  the  Constitution,  be 
withdrawn  and  restored  to  the  party  except  by  the  authority  of  Congress.  A  sentence 
forfeiting  pay  can  be  remitted  only  as  to  pay  not  due  and  payable  at  tlie  date  of  the 
remission.  Where  a  soldier's  pay  has  been  forfeited  by  an  executed  sentence,  no  mere 
amendment  of  the  muster-roll  upon  which  the  same  lias  been  noted  can  operated  to 
undo  such  forfeiture.  After  pa}'  forfeited  by  sentence  has  gone  into  the  Treasury,  it 
cannot  add  to  the  authority  of  the  E.xecutive  to  return  it  that  the  sentence  was  in  fact 
void  ;  the  authority  of  Congress  is  still  necessary  to  the  reimbursement  of  the  officer  or 
soldier.     Ibid. ,  421,  p&r.  14. 

'  Ibid.,  419,  par.  6.  Where  an  officer  was  sentenced  to  be  dismissed  with  forfeiture 
of  pay  due,  and  subsequently  to  the  approval  of  the  sentence,  but  before  such  approval 
had  been  promulgated  to  the  Army  or  the  officer  had  been  officially  notified  of  the 
same,  he  applied  for  ami  received  the  pay  due  him,  held  that,  inasmuch  as  the  for- 
feiture had  not  taken  effect  at  the  time  of  the  payment,  no  illegal  act  was  committed 
by  the  officer,  and  that  the  paymaster  who  paid  him  was  not  properly  to  beheld  account- 
able for  the  amount  paid.     Ibid.,  421,  par.  18. 


PUNISHMEMS.  179 

for  storea  or  property  purchased  or  used,  or  for  articles  of  public  property 
lost  or  destroyed,  or  for  a  debt  due  on  account.'  In  a  limited  number  of 
cases,  when  authorized  by  law,  stoppages  may  be  made  for  debts,  or  amounts 
due  to  private  individuals,  as  to  the  company  tailor,  in  accordance  with  Sec- 
tion 1220  of  the  Revised  Statutes,  or  as  to  post  traders  and  laundrymen,  in 
accordance  with  the  authority  conferred  by  the  Act  of  June  30,  1882.' 

How  Made. — Stoj)pages  are  usually  entered  upon  the  muster  and  pay 
rolls,  or  are  notified  to  the  officers  against  whom  they  are  made.  The 
correctness  of  a  proposed  stoppage  must,  in  general,  be  admitted  by  the 
debtor  before  the  contemplated  deduction  can  be  made.  If  the  rolls  be 
signed,  or  if  pay  be  accepted,  however,  without  question  or  protest,  from 
which  a  certain  amount  has  been  deducted,  such  signing  or  acceptance  will 
operate  as  an  implied  waiver  of  objection  to  the  justice  or  correctness  of  the 
charge. 

In  a  case  of  supposed  liability  to  stoppage  resulting  from  a  neglect  or 
an  act  chargeable  as  a  military  offense,  and  as  to  which  the  facts  are 
disputed,  it  is  in  general  preferable  to  have  the  case  investigated  and  the 
actual  pecuniary  liability,  if  any,  fixed  by  a  trial  by  court-martial.' 

'  Dig.  J.  A.  Gen.,  720,  par.  3;  ibid.,  721,  par.  8  ;  ibid.,  719.  par.  1.  Stoppages  are 
authorized  to  be  made  in  Sections  1144,  1145.  1220,  1302,  1303,  1304,  1308,  and  1766 
of  the  Revised  Statutes. 

-  22  Stat,  at  Large,  122.  A  stoppage  is  distinguislied  from  a  forfeitnre  or  fine,  and 
an  executive  stoppage,  or  stoppage  by  order,  cannot  be  imposed  for  an  offense.  But  it 
is  entirely  legal  to  slop  against  a  soldier's  pay,  under  par.  1390,  A.  K.  1895,  an 
amount  required  to  reimburse  tlie  United  States  for  loss  on  account  of  damage  done  to 
public  property,  while  at  the  same  time  bringing  the  soldier  to  trial  b}'  court-martial  for 
the  offense  involved.     Ibid.,  720,  par.  3. 

Where  subsistence  stores  were  sold,  by  a  post  commissary  of  subsistence,  to  a  mess 
of  three  officers  of  the  post,  and  charged  to  the  mess  as  such,  Jteld  that  such  mess  was 
not  iu  the  nature  of  a  commercial  partnership  in  which  each  member  was  bound  for  the 
joint  indebtedness,  but  was  simply  an  association,  for  purposes  of  convenience  and 
economy,  of  three  individuals,  e.ach  of  whom  was  bound  to  the  United  Slates  only  for 
his  proportion — one  third — of  the  account.  And  Jield  that  a  memlier  who  had  paid  his 
proportion  to  one  of  tlie  other  members  who  acted  as  caterer,  but  who  had  deceased 
without  paying  over  this  amount  to  the  commissary,  remained  liable  for  sucii  propor- 
tion to  the  United  States.     Ibid.,  723,  par.  1. 

Construing  Sec.  1766,  Rev.  Sts.,  as  applying  only  to  bonded  disbursing  officers,  held 
that  a  tine  of  one  hundred  dollars  imposed  by  a  civil  court  upon  a  soldier  for  a  violation 
of  the  postal  laws  could  not  legally  be  stopped  against  his  pay  uiuit'r  that  section. 
But,  independently  of  tliis  statute,  the  pay  of  an  officer  or  .soldier  who  is  in  arrears  to 
the  United  States  may  always  legally  be  withheld  till  the  indebtedness  is  satisfied.* 
Ibid..  721,  par.  9.     See,  also,  par.  2,  p.  180,  post. 

^  Dig.  J.  A.  Gen.,  719,  par.  1.  A  recruit  absented  himself  from  a  detachment  of 
recruits,  at  a  place  in  Ohio,  while  en  route  from  the  recruitini:  depot  to  his  proper  station, 
Fort  Yates.  N.  D.,  and  was  taken  to  Fort  Niagara  and  tried  upon  a  charge  of  desertion, 
but  convicted  of  absence  without  leave  only.  Held  tliat  the  only  stoppages  to  which  he 
could  legally  be  subjected  were  the  amount  of  the  pay  and  allowances  accruing  during 
Ids  absence,  vmder  par.  133,  A.  R.  1895.  and  the  amount  of  the  expenses  incurred  iu 
transporting  him  "  to  his  proper  station,"  under  par.  126,  A.  R.  1895.  But  field  further 
that  the  words  "to  his  proper  station,"  in  the  last  part  of  the  regulation,  were  to  be 
construed  as  equivalent  to  the  expression,  in  the  first  part,  "  to  tlie  station  of  his  com- 
pany or  to  the  place  of  his  trial  "  ;  that  it  would  not  be  legal  to  slop  against  him  the  ex- 


*  Gratiot  vs.  U.  S.,  15  Peters,  336  ;  McKiiisht  i-.--.  U.  S.,  98  U.  S..  180. 


180  MILITARY  LAW. 

The  pay  of  an  officer  or  soldier  cannot  be  subjected  to  stoppage  except 
by  the  authority  of  a  statute  or  regulation  specifically  authorizing  the  same, 
or  by  sentence  of  a  court-martial  imposing  a  forfeiture  or  fine  as  a  punish- 
ment, or  where  the  party  has  become  indebted  to  the  United  States  on 
account.' 

The  United  States  is  not  authorized  to  stop  against  the  pay  of  an  officer 
or  soldier  an  amount  of  personal  indebtedness  to  another  officer  or  soldier, 
though  such  indebtedness  may  have  grown  out  of  the  relations  of  the  mili- 
tary service.  Thus,  in  the  absence  of  a  sentence  of  court-martial  forfeiting 
the  same,  an  officer's  pay  cannot  legally  be  stopped  with  a  view  to  the  reim- 
bursement of  enlisted  men  who  have  deposited  with  him  money  for  safe- 
keeping, and  which  he  has  failed  to  return  when  required,  the  officer  being 
accountable  for  the  same  in  a  personal  capacity  only.' 

Stoppages  for  Certain  Injuries  done  to  Citizens  of  the  United  States. — 
The  5-ith  Article  of  War  contains  the  requirement  that  "  every  officer  com- 
manding in  quarters,  garrison,  or  on  the  march  shall  keep  good  order  and, 
to  the  utmost  of  his  power,  redress  all  abuses  or  disorders  which  may  be 


penses  of  the  transportation  to  both  places  ;  that  if  the  place  of  tiial  was,  as  here,  dif- 
ferent from  the  station  of  the  company,  it  would  be  proper  to  stop  the  expenses  of 
transportation  to  the  former  and  not  to  the  latter;  and  tliat,  this  being  done,  the  stoppage 
of  the  expense  of  transporting  him  to  the  station  of  his  compauj%  after  the  trial,  would 
not  be  authorized.     Dig.  J.  A.  Gen..  723,  par.  12. 

'  Dig.  .J.  A.  Gen.,  719,  pai-.  1.  Pay  due  an  officer  or  soldier  can  legally  be  stopped 
only  by  reason  of  an  accountability  to  the  United  States.*  So  held  that  it  could  not 
legally  be  stopped  to  reimburse  a  telegraph  conij)any  lor  moneys  received  by  a  .sergeant 
of  the  then  Signal  Corps  for  trai:sniitting  private  messages  over  its  line,  the  same  not 
being  a  line  "  operated  by  tlie  United  Slates  "  in  the  sense  of  the  Act  of  March  o,  1883, 
and  the  indel)tedness  of  the  .sergeant  being  to  the  telegraph  company  only,  not  to  the 
United  States.  So  held  that  it  would  not  be  bgnl  to  sU)]>  the  pay  of  an  officer  for  tlie 
amount  of  a  local  bounty  Mlleged  to  have  been  neglected  to  be  paid  over  by  him  to  an 
enlisted  volunteer  on  whose  .-iccount  it  was  received.  An  officer  or  soldier  cannot 
legally  he  mulcted  of  any  part  of  his  pay  for  the  satisfuctiou  of  a  private  claim.  Ibid., 
721.  par.  8. 

A  superior  is  not  authorized  to  stop  against  the  pay  of  an  inferior  the  value  of 
property  charged  to  have  been  criminally  misappropiiatcd,  and  it  is  the  experience  of 
the  Judge  Advocate-General  that  most  or  many  of  the  cases  of  loss  of  or  injury  to 
public  properly  in  which  the  facts  have  been  investigated  and  the  damage  assessed  by 
boards  of  survey  would  have  been  more  profitably  passed  upon  by  courts-martial,  by 
which,  instc'id  of  a  .stoppage,  a  forfeiture  could  have  been  imposed,  as  a  punishment,  by 
sentence.     I/nd..  719,  par.  1. 

'  Ihid..  720.  par.  2.  Par.  263,  A.  R.  of  1895,  rccpiiring  deductions  to  be  made  from 
the  pay  of  soldiers  in  favor  of  "tradesmen  "  who,  wiien  "  relieved  from  oidin;iry  mili- 
tary duty,"  are  authorized  to  make  or  repair  .soldiers'  uniforms,  held  to  authorize  stop- 
pages for  dues  lo  tailors  who  are  in  the  military  service,  and  also  for  dues  to  civilian 
tailors.     Ibid.,  par   4  ;  Circular  8,  A.  G.  O.,  1896'     Sec,  also,  note  2.  pnge  179,  ante. 

The  Armv  Approytriation  Act  of  June  16,  1892,  provides  that  "  the  pay  of  officeis  of 
the  army  may  be  wiildicld  under  Sec.  1766.  R.  S.,  on  account  of  an  indebtedness  lo  the 
United  States" admitted  or  siiovvn  by  the  judgment  of  a  court,  but  not  otiierwise,  unless 
upon  a  special  order  issued  according  to  tin;  direction  of  the  Secretary  of  War.''  Held 
that  the  last  part  of  this  provision  was  not  to  be  construed  separately,  but  in  connection 
with  the  former,  and  could  not  be  interjireted  as  empowering  the  Secretary  of  War  to 
stop  the  pay  ot'  officers  of  the  Army  to  satisfy  private  debts,     ihid.,  722,  par.  11. 


*  See  16  Opin.  Att.-Gen..  477. 


PUNISIIMEyiS. 


181 


coiiiiiiitted  l.y  any  officer  or  soldier  under  his  command-,  and  if,  upon  com- 
plaint made  to  liim  of  officers  or  soldiers  beating  or  otherwise  ill-treating 
any  person,  disturbing  fairs  or  markets,  or  committing  any  kind  of  riot,  to 
the  disquieting  of  the  citizens  of  the  United  States,  he  refuses  or  omits  to 
see  justice  done  to  the  olTender,  and  reparation  made  to  the  party  injured, 
so  far  as  part  of  the  offender's  pay  shall  go  toward  such  reparation,  he  shall 
be  dismissed  from  the  service  or  otherwise  punislied  as  a  court-martial  may 

direct." 

While  this  Article  would  certainly  appear  to  contemplate  the  making  of 
reparation  for  injuries  done  to  the  persons  of  citizens  rather  than  for  injuries 
done  to  their  property,  in  view  of  the  precedents  it  may  probably  be 
regarded  as  within  the  equity  of  the  Article  to  indemnify  a  citizen  for 
wanton  injury  done  to  his  property  by  an  officer  or  soldier  or  by  an  organ- 
ized command,  by  means  of  a  stoppage  against  his  or  their  pay  summarily 
ordered  upon  investigation  by  the  commanding  officer.'  In  a  few  cases  a 
stoppage  of  the  pay  of  an  entire  regiment  for  damage  to  private  projjerty 
committed  by  its  members  has  been  sanctioned  as  authorized  under  the 
general  remedial  provisions  of  this  Article.'' 

The  stoppage  contemplated  is  quite  distinct  from  a  punishment  by  fine, 
and  it  cannot  affect  the  question  of  the  summary  reparation  authorized  by 
the  Article  that  the  offender  or  offenders  may  have  already  been  tried  for 
the  offense  and  sentenced  to  forfeiture  of  pay.  In  such  a  case,  indeed,  the 
forfeiture,  as  to  its  execution,  would  properly  take  precedence  of  the 
stoppage.  Ow  the  other  hand,  where  the  stoppage  is  first  duly  ordered 
under  the  Article,  it  has  precedence  over  a  forfeiture  subsequently  adjudged 
for  the  offense.' 

It  does  not  affect  the  question  of  reparation  under  the  Article  that  the 
offender  or  offenders  may  be  criminally  liable  for  the  injury  committed,  or 
may  have  been  punished  therefor  by  the  civil  authorities.* 

Reprimands.— This  form  of  punishment  is  frequently  resorted  to  in  sen- 
tences imposed  upon  commissioned  offfcers  by  general  courts-martial.  The 
function  of  the  court  iu  imposing  a  reprimand   as  a  part  of  its  sentence 

>  See  G.  O.  35,  Hdqrs.  of   Army.  1868.   construing  this  ArticU'.  and  prescribing  Ibe 

proceeiiiiig  iimier  it  ;  reparation  for  injurv  to  property  as  well  as  person  bcnig  auilior- 
ized.  The  Article,  however,  is  aniiquated  in  form  and  indeliniU'  and  uiconiplete  ui  its 
provisious,  and  calls  for  repeal  or  aniendinent.  For  some  of  ihe  princijial  casts  m  wliicli 
it  has  been  apj^lied  in  our  practice  Ihe  student  is  referred  to  G.  Vt.  4,  Depl.  of  the  Oi.io, 
lS6:i  •  do.  Vi:\,  Dei.t.  of  the  Gulf.  1864;  dc.  161.  Dept.  of  Washington,  1865:  do.  59,  ul, 
1866;  do.  74,  Dept  of  Arkansas.  1M65  do.  48.  .'),5,  Dept.  of  Louisiana,  1866:  do.  6.  Dept. 
of  the  (Cumberland.  l'^67;  do.  10,  Dejit.  of  tlie  South.  1870. 

'  Dig.  J.  A.  Gen.,  46.  par.  1.  Ilehl  that  the  remedial  j^rovision  of  this  Article  could 
not  be 'enforced  in  hivor  of  military  i>ersons,  or  in  favor  of  the  United  States,  or  to 
indemnifv  parties  for  property  stolenOr  embezzled,      /i/rf..  47,  par.  4. 

3  Ibid'.  46,  ]iar.  2.  The  \\\\  of  the  offender  or  offenders  can  be  resorted  to  only  for 
the  purpose  of  the  "  reparation."  A  military  ((.nnnander  caiijiave  no  authority  to  add 
a  further  amount  of  stoppage  by  way  of  punishment.     Ibid..  41,  par.  5. 

*lbid.,  46,  par.  3. 


1S2  MILITARY  LAW. 

ends  with  the  incorporation  of  such  a  requirement  in  the  sentence  imposed 
in  a  particular  case.  It  cannot  prescribe  its  form,  indicate  its  severity,  or 
indeed  add  anything  in  regard  to  its  execution  save  to  direct  that  the 
reprimand  imposed  in  its  sentence  shall  be  administered  by  the  commander 
who  convened  the  court.  A  sentence  directing  a  reprimand  to  be  imposed 
by  an  officer  inferior  to  the  convening  authority  is  not  in  accordance  with 
the  approved  practice  of  the  service.  It  is  not  necessary  or  desirable,  how- 
ever, that  the  court  should  direct  as  to  the  execution  of  the  sentence,  the 
same  being  the  proper  province  of  the  reviewing  officer,' 

Although  in  adjudging  a  reprimand  it  is  generally  intended  by  a  court- 
martial  to  impose"  a  mild  punishment,  the  quality  of  the  reprimand  is 
nevertheless  left  to  the  discretion  of  the  authority  who  is  to  pronounce  it, 
and  it  is  open  to  him  to  make  it  as  severe  as  he  may  deem  expedient  with- 
out being  chargeable  with  adding  to  the  punishment.' 

ENLISTED    MEN, 

The  following  punishments  are  those  usually  imposed  upon  enlisted 
men. 

Death.' — The  subject  of  capital  punishment  has  already  been  discussed. 

Reduction  to  the  Ranks. — This  punishment,  as  the  name  implies,  is 
applicable  only  to  non-commissioned  officers.  Reduction  may  be  imposed 
as  a  separate  punishment,  or  in  connection  witli  forfeiture  of  pay  or  confine- 
ment. If,  however,  punishment  in  the  nature  of  imprisonment  or  confine- 
ment be  imposed,  reduction  to  the  ranks  should  constitute  the  first  clause 
of  the  sentence,  and  should  be  executed  before  the  sentence  of  confinement 
becomes  operative.  In  certain  branches  of  the  staff,  the  engineer,  and  tlie 
ordnance  departments,  for  example,  where  the  statutes  recognize  several 
grades  or  classes  of  privates,  a  private  of  the  first  or  highest  class  may,  by 
sentence  of  a  court-martial,  be  reduced  to  a  lower  class  as  a  punishment  for 
a  military  offense." 

Suspension.  —  Suspension,  as  a  punishment  for  a  nott-commissmied 
officer,  is  not  authorized  in  terms  in  the  101st  Article,  nor  is  it  contemplated 


'  Di^.  .J.  A   Gen..  660,  par.  1. 

^  Jhid.,  par.  2. 

»  See  the  litle  Denth  in  the  paragraph  respecting  the  punishments  applicable  to  com- 
missioned officers. 

*  A  court-martial,  in  sentencinu  a  non-commissioned  officer  to  l)e  reduced  to  the  ranks, 
is  not  empowered  to  direct  that  when  reduced  he  le  transferred  to  another  regiment  or 
company.  The  authority  to  order  the  transfer  of  soldiers  is  expressly  vested  by  Art. 
XVIII  of  the  Army  Regulations  of  ItJQo  in  certain  military  commanders.  Dig.  J.  A. 
Gen.,  65^,  par.  1. 

The  warrant  or  certificate  given  to  a  non-commissioned  officer  is  as  much  the  per- 
sonal  property  of  the  individual  as  is  the  commission  given  to  a  commissioned  officer. 
In  the  absence  of  any  statute  or  regulation  requiring  that  a  sergeant  or  corporal  shall 
surrender  his  warrant  on  being  reduced  to  the  ranks  (or  dishonorably  discharged)  he 
may  retain  it  with  the  same  right  as  that  by  which  an  officer  retains  his  formal  commis- 
sion on  being  dismissed.     Jbid.,  par.  2. 


P  UNISHMENTS.  183 

in  the  Army  Regulations.  It  has  been  adjudged  in  but  rare  cases,'  and 
cannot  be  regarded  as  sanctioned  by  principle  or  usage.' 

Dishonorable  Discharge. — This  punishment  is  frequently  imposed  upon 
enlisted  men  as  a  j)enalty  for  the  more  serious  military  offenses,  either 
separately  or  in  combination  Avith  forfeiture  of  pay  and  a  term  of  imprison- 
ment; in  which  case  it  constitutes  the  severest  punishment  that  is  usually 
imposed  upon  this  class  of  offenders  in  time  of  peace.  The  effect  of  a  sen- 
tence of  dishonorable  discharge,  like  that  of  dismissal  in  the  case  of  an 
officer,  is  to  completely  sever  the  soldier  from  all  connection  with  the  military 
establishment,  and  he  can  only  re-enter  it,  if  at  all,  by  an  enlistment  con- 
tract executed  in  the  usual  manner. 

A  dishonorable  discharge  is  a  discharge  expressly  imposed  as  a  punish- 
ment by  the  sentence  of  a  general  court-martial.  It  is  only  in  pursuance  of 
such  a  sentence  that  a  dishonorable  discharge  can  be  authorized,  for,  being  a 
punishment,  it  cannot  be  prescribed  by  an  order.  In  a  case  of  such  dis- 
charge the  word  "  dishonorably  "  is  inserted  before  the  word  "  discharged  " 
in  the  discharge  certificate,  and  it  is  added  that  the  discharge  is  given  pur- 
suant to  the  sentence  of  a  certain  general  court-martial,  specifying  it  by 
reference  to  the  order  in  which  it  was  promulgated.' 

In  imposing  a  considerable  term  of  confinement,  courts-martial,  now 
almost  invariably  add  the  penalty  of  dishonorable  discharge.  In  general 
this  penalty  is  directed  by  the  court  to  \ie  first  executed, — as  bv  the  form 
"to  be  dishonorably  discharged  and  confined,"  etc.  "Where  there  is  no 
express  indication  in  the  sentence  as  to  which  punishment  is  to  be  first 
enforced,  the  one  named  first  in  order  is  regarded  as  that  intended  to  be 
first  executed,  and.  is  so  executed  in  practice." 


'  See  a  comparatively  late  instance  in  General  Court-martial  Orders,  No.  33,  Dept.  of 
the  East,  1872. 

'  Dig.  J.  A.  Gen.,  733.  par.  15. 

^  Ibid.,  361,  par.  25.  Such  a  discharge  is  held  also  to  be  involved  in  a  sentence  "  to 
be  drummed  out  of  the  service."    Ibid. 

Held  that  an  executed  dishonorable  discharge  was  an  absolute  expulsion  from  the 
Array,  and  as  such  did  not  merely  terminate  the  particular  enlistment,  but  covered  all 
previous  unexecuted  enlistments  of  tlie  soldier,  if  any.  A  soldier  sentenced  to  a  dis- 
honorable discharge,  duly  approved  and  executed,  cannot  be  made  amenable  for  a 
desertion  committed  under  a  prior  enlistment.     Jbid.,  par.  26. 

Held  that  a  subsequent  enlistment  aft<r  a  dislionorablc  discharge  would  not  operate 
to  revive  any  outstanding  anu'nability  of  the  soldier.  This  upon  a  principle  of  public 
policy  and  good  faith,  and  because  the  acceptance  into  the  service  under  the  later  enlist- 
ment is  in  the  nature  of  a  condonation.     Ibid.,  par.  27. 

The  mere  fact  that  at  the  time  of  the  mnster-out  of  his  regiment  a  soldier  was 
under  arrest  by  the  civil  authorities  for  an  alleged  crime,  which,  however,  was  not  fol- 
lowed by  a  trial  and  conviction,  does  not  justify  his  being  dishonorably  discharged.  If 
released  without  trial,  the  discharge  should  be  honorable.     Ibid.,  par.  28. 

A  soldier  dishonorably  discharged  lo.ses  his  retained  pav  under  Sec.  1281,  Rev.  Stg. 
(see  par.  1381,  A.  R.  1895),  and  his  travel  pay  under  Sec.  1290.  Rev.  Sts.     Ibid.,  par.  29. 

*  Dig.  J.  A.  Gen.,  357,  par.  7.  AVhere  a  court-martial,  in  imposing  dishonorable 
discharge  in  connection  with  confinement,  directs  that  the  discharge  be  first  executed,  or 
where  it  is  reasonably  to  be  inferred  from  tlie  terms  of  the  sentence  that  it  was  the 
intention  of  the  court  that  the  punishments  should  be  executed  in  this  order,    ibr 


184  Ml  LIT  ART  LAW. 

The  service  of  a  soldier  dishononibly  discharged  under  a  sentence  of 
court-martial  terminates,  and  his  discharge  should  be  dated,  as  of  the  day 
on  which  the  approval  of  the  sentence  is  officially  published,  or  the  order 
promulgating  such  approval  is  received,  at  the  post  where  the  soldier  is  held. 
It  is  to  that  date  that  he  is  to  be  paid,  if  pay  is  due  him.' 

Where  a  soldier  has  been  legally  sentenced  to  be  dishonorably  discharged, 
and  such  sentence  has  been  duly  executed,  it  is  beyond  the  power  of  the 
Executive,  whatever  the  merits  of  the  case,  to  substitute  an  honorable  in 
lieu  of  the  dishonorable  discharge.  The  latter  having  gone  into  effect 
cannot  be  undone;  moreover  the  soldier,  having  been  thereby  wholly 
detached  from  the  military  service  and  made  a  civilian,  cannot  again  be  dis- 
charged from  the  service  until  he  has  been  again  enlisted  into  it.^ 

While  a  dishonorable  discharge,  standing  by  itself,  imposes  no  disqualifi- 
cation upon  re-enlistment  in  the  military  service  or  employment  in  the  civil 
service  of  the  United  States,  such  disqualification  is  in  terms  imposed  by  the 
Act  of  August  1,  189-i,'  which  contains  the  requirement  that  "  no  soldier 

reviewing  officer,  in  approving  the  sentence,  is  not  empowered  to  command  that  the 
execution  of  the  discharge  be  postponed  to  the  end  of  the  t(>rm  of  confinement.*  On  the 
other  hand,  if  the  sentence  clearly  imposes  the  dishonorable  discharge  of  the  soldier  at 
the  end  of  ihe  term  of  contiueraent.  the  reviewing  officer  is  not  authorized  to  direct  that 
he  he  discharged  forthwith.     Dig.  J.  A.  Gen.,  357,  par.  8. 

Where  a  court-martial  sentenced  a  soldier,  in  connection  with  confiuement,  to  be 
dishouorablv  discharged  at  such  date  as  might  be  fixed  by  the  reviewing  officer,  advised 
that  such  a  sentence  was  exceptional  and  irregular  as  devolving  upon  the  reviewing 
officer  a  duty  pertaining  to  the  court,  and  that  the  court  would  properly  be  reassembled 
for  the  revision  of  the  same.f     Ibid.,  par.  9. 

A  sentence  "  to  be  imprisoned  for  tifteen  years  and  then  dishonorably  discharged  " 
h^ld  (in  view  of  tlie  fact  that  enlistments  in  our  Army  are  for  Ave  years  only)  to  be,  so 
far  as  related  to  the  discharge,  irregular  and  unauthorized.  A  sentence  of  court-martial 
cannot  operate  to  retain  a  .soldier  in  the  United  States'  service  beyond  his  legal  term  of 
enlistment.  And  advised  that  the  court  be  reassembled  for  the  revision  of  this  sentence, 
and  that  it  be  suggested  to  it  to  inipo.se  the  discharge  in  advance  of  the  imprisonment, 
in  accordance  with  approved  precedents.     Ibid.,  358,  par.  10. 

•  Dig.  J.  A.  Gen.,  359,  par.  16. 
«/6mZ.,  358.  par.  12. 

*  Act  of  August  1,  1894(28  Stat,  at  Large,  216).  See,  also,  in  this  (;onnection  the 
3d  Article  of  War,  in  which  certain  enlistments  are  forbidden;  Dig.  .1.  A.  Gen.,  385, 
par.  3;  U  S.  vs.  Grimley,  137  U.  S.,  147;  paragraphs  823-827,  Armv  Regulations  of  1895; 
and  Dig.  .1.  A.  Gen  ,  358,  par.  11.  The  Act  of  June  16,  1890,  (26  Stat,  at  Large,  157,) 
contained  tlie  provision  "that  the  Secretary  of  War  shall  determine  what  misconduct 
shall  constitute  a  failure  to  render  honest  and  faithful  service  within  the  meaning  of  this 
Act  But  no  soldier  who  has  deserted  at  any  time  during  the  term  of  an  enlistment  shall 
be  deemed  to  have  served  such  term  honestly  and  faithfully."  Under  the  authoritj'- 
conferred  by  this  statute  the  Secretary  of  War  has  decided  tlial  in  the  following  cases 
there  has  b -en  a  failure  to  render  honest  and  faithful  service  : 

(1)  Desertion. 

(2)  When  the  soldier  is  in  contineinenl  under  a  general  court-martial  sentence 
expres.sly  imposing  imprisonment  until  or  beyond  the  expiration  of  his  term;  when  dis- 
charged under  .sentence  of  general  court-martial;  when  discharged  by  order  from  the  War 
Department  specifying  forfeiture,  or  becau.se  of  imprisonment  by  the  civil  authority. 


*  See  an  opinion  of  the  Jmlfre-Ailvocate  General  on  this  subject  pubhshed  and  approved  by  the 
Secretary  of  War  in  G.  O.  71,  War  Depf..  1875. 

+  See  opinion  to  this  eflfect  published  as  approved  by  the  Secretary  of  War  ia  G.  O.  90,  War  Dept., 
1873. 


I'l'MSlIMENTS.  185 

sliall  be  again  re-enlisted  in  the  Army  whose  service  during  liis  last  preced- 
ing term  of  enlistment  has  not  been  honest  and  faitliful," 

Imprisonment;  Confinement. — In  respect  to  their  legal  effects  upon  an 
enlisted  man  the  terms  imprisonment  and  confinement  are  identical.  Such 
punishments  may  be  executed  (a)  in  a  state  prison  or  penitentiary  when 
the  offense  of  which  he  has  been  convicted  "  would  by  some  statute  of  the 
United  States,  or  by  some  statute  of  the  State,  U'erritory,  or  District  in  which 
such  otl'ense  may  be  committed,  or  by  tlie  common  law  as  the  same  exists  in 
such  State,Territory,or  District,  subject  such  convict  to  sucli  punishment  " ;' 


{'.^)  Wlieii  the  soldier  is  discliaifred  for  minority  concealed  at  enlistineiit,  or  for  other 
cause  iiivolvin-^  fraud  in  eidisUueiil,  or  for  di.sabiiily  causetl  by  Ins  nnscunduct. 

(4)  Upon  the  approved  lindiiif;;  of  a  board  of  officers  called  uiuler  paragraph  148, 
Army  Regulations  of  1895,  that  the  soldier  has  not  served  honestly  and  faithfully  to  the 
dale  of  discharge. 

The  cause  of  forfeiture  will  be  stated  on  the  muster  and  pay-rolls  and  on  the  final 
statements  of  the  soldier. 

Any  form  of  discharge  other  than  such  as  is  prescribed  in  the  4th  Article  of  War  is 
irregular  and  inoperative  (unless  indeed  otlicrwise  authorized  by  sul)sequeut  statute). 
Mere  desertion  does  not  operate  as  a  discharge  of  a  soldier;  he  may  then  be  dropped 
from  the  rolls  of  his  command,  but  he  is  in  no  sense  discharged  from  the  army.  Nor 
can  an  official  i)ubliration,  in  orders,  of  a  sentence  of  dishonorable  discharge  have  the 
etTect  of  discharging  a  soldier:  there  must  still  be  notice,  actual,  as  by  the  delivery  of 
the  formal  discharge  certificate,  or  constructive,  of  the  formal  discharge.  A  soldier 
raiiiiot  discharge  himself  by  simply  leaving  the  service  at  the  expiration  of  his  term. 
The  final  statements  required,  by  Regulations,*  to  be  furnished  with  the  discharge 
constitute  no  part  of  the  discharge:  the  di.scharge  is  complete  without  them.  Di"-  J  A 
Gen.,  3r)9,  par.  17.  ° 

'  iJTili  Article  of  War.     This  Article  by  necessary  implication  prohibits  the  imposi- 
tion   of   confinement   in  a  penitentiary  as  a  punishment   for  offenses  of  a  purely  or 
exclusively  military  character — such  as  desertion,  for  example.f     Dig.  Opin.  J   A  Geu 
113,  par.  1. 

A  sentence  of  penitentiary  confinement  in  a  case  of  a  purely  military  offense  is 
wholly  unauthorized  and  should  be  disapproved.  Effect  cannot  be  yiven  to  such  a 
sentence  by  comnuiting  it  to  confinement  in  a  military  pilson  or  to  some  other  punish- 
ment which  would  be  legal  for  such  offense.  Nor  in  a  case  of  such  an  offense  can  a 
severer  penalty,  as  death,  be  commuted  to  confinement  in  a  penitentiary.     Ibid.,  par.  2. 

Nor  can  penitentiary  confinement  be  legalized  as  a  punishment  for  purely  military 
offenses  by  designating  a  penitentiary  as  a  "  miJitary  prison  ''  and  ordering  the  confine- 
ment there  of  soldiers  sentenced  to  imprisonment  on  conviction  of  such  offenses.  Ibid., 
par.  ;j. 

An  offense  charged  as  "  conduct  to  the  prejudice  of  good  order  and  militar}-  discipline," 
which,  however,  is  in  fact  a  laiceny,|:  embezzlement,  violent  crime,  or  other  offense  made 
punishable  with  penitentiary  confinement  by  the  law  of  the  Stale,  etc.,  may  legally  be 
visited  with  this  punishment.      Ibid.,  114,  par.  4. 

The  term  "penitentiary"  as  employed  in  this  Article  has  reference  to  civil  prisons 
only,  as  the  penitentiary  of  the  United  States,  or  District  of  Columbia  at  Washington, 
the  public  prisons  or  penitentiaries  of  the  different  States,  and  the  "  penitentTaries 
erected  by  the  United  States"  (see  Section  189'.*,  Revi.sed  Statutes)  in  most  of  the  Terri- 
tories. The  military  prison  at  Leavenworth  is  not  a  penitentiar}'  in  the  sense  of  the 
Article.  The  term  "  State  (or  Slate's)  prison  "  in  a  sentence  is  equivalent  to  penitentiary. 
Ibid.,  par.  5. 

A  military  i^risoner  duly  sentenced  or  committed  to  a  penitentiary  becomes  subject  to 
the  government  and  rules  of  the  institution.     Ibid.,  par.  6. 

*  Par.  139.  A.  R.  18!>5. 

t  .See  G.  O.  4.  War  Dept.,  1867;  also  the  action  taken  in  cases  in  the  followinE:  Qeneral  Orders-  G  O 
21,  Dept.  of  the  Platte,  1866;  G.  O.  Jl.  ibid.,  1871;  G.  O.  44,  Eighth  Army  Corps,  1862;  G.  C  M  O  34  "So' 

43,  46,  Ti.  73,  Dept.  of  the  Missouri,  1S70.  '      ' 

t  In  a  c.Hse  of  larcetiy  the  court  should  inform  itself  as  to  whether  the  value  of  the  property  stolen 
lie  not  too  small  to  permit  i)f  penitentiary  confinement  for  the  offense  under  the  local  law     See  G   O 

44,  Eighth  Army  Corps,  ISG'i;  G.  C.  M.  O.  03.  Dept.  of  the  Platte,  187-,». 


ISO  MI  LIT  ART  LAW. 

or  (&)   in  the  Military  Prison,'  or  at  a  military  post,  as  a  "  general  pris- 


Where  a  soldier  is  sentenced  to  be  confined  in  u  penitentiiiry,  tlie  proper  reviewing 
aulhoritj-  may  legally  designate  for  the  execution  of  the  punishment  any  State  or  Terri- 
torial penitentiary  within  liis  command.  Where  there  is  no  such  pcniientiiiry  available 
for  the  purpose  (ir  desirable  to  be  resorted  to,  he  will  properly  submit  ihe  case  to  the 
Secretary  of  War  for  the  designation   of  a  proper  penitentiary.     Dig.  J.  A.  Gen.,  114, 

par.  7. 

A  court-martial,  in  imposing  by  its  sentence  the  punishment  of  confinement  in  a 
penitentiary,  is  not  required  to  follow  the  statute  of  the  United  States  or  of  the  State, 
etc.,  as  to  the  term  of  the  confinement.  It  may  adjudge,  at  its  di-scretion,  a  less  or  a 
greater  term  than  that  affixed  by  such  statute  to  the  particular  offense.  At  the  same 
time  the  court  will  often  do  well  to  consult  the  statute,  as  indicating  a  reasonable  measure 
of  punishment  for  the  offense.     Ibid.,  par.  8. 

Where  a  court-martial  specifically  sentences  an  accused  to  confinement  in  a  "  military 
prison,"  he  cannot  legally  be  committed  to  a  penitentiary,  alliiougli  such  form  of 
imprisonment  would  be  authorized  by  the  character  of  his  offense.  But  where  a  sentence 
of  confinement  is  expressed  in  geui  ral  terms,  as  where  it  directs  thai  the  accused  shall 
be  confined  "  in  such  place  or  prison  as  the  pmper  authority  may  order,"  or  in  terms  to 
such  ett'ect,  held  that  the  same  may,  under  this  Article,  legally  be  executed  by  the 
commitment  of  the  party  to  a  i)euiteiiliary,  to  be  designated  by  the  reviewing  officer  or 
Secretary  of  War,  provided,  of  course,  the  offense  is  of  such  a  nature  as  to  warrant  this 
form  of  punishment.     Ibid.,  par.  9. 

Held  that  penitentiary  confinement  could  not  legally  be  adjudged  upon  a  couvictioa 
of  a  violation  of  the  21st  Article,  alleged  in  the  specification  'to  have  consisied  in  the 
lifting  up  of  a  weapon  (a  pistol)  against  a  commanding  officer  and  discharging  it  at  him 
with  Intent  to  kill.  By  charging  the  offense  under  this  Article  the  government  elected 
to  treat  it  as  a  purely  military ^)ffense,  subject  only  to  a  military  punishinent.  So,  upoa 
a  conviction  of  joining  in  a  mutiny,  in  violation  of  Article  22,  held  that  a  sentence  of 
confinement  in  a  penitentiary  would  not  be  legal  although  the  mutiny  involved  a  hom- 
icide, set  forth  in  the  specification  as  an  incidental  aggravating  circumstance.  To  have 
warranted  such  a  punishment  in  either  of  these  caseslhe  Government  should  have  treated 
the  act  as  a  "crime,"  and  charged  and  brought  it  to  trial  as  such,  under  Article  62. 
Ibid.,  115,  par.  10.  '      _ 

Where  the  act  is  charged  as  a  crime  under  Article  62,  and  charge  and  specification 
taken  together  show  au  offense  punishable  with  confinement  in  a  penitentiary  by  the  law' 
of  the  locus  of  the  crime,  the  sentence  may  legally  adjudge  such  a  punishment.  So  held 
in  a  case  where  charge  and  specification  together  made  out  an  allegation  of  perjuiy  under 
Section  5892,  Itevised  Statutes.     Ibil.,  par.  11. 

"Obtaining  monev  under  false  pretenses"  is  punishable  by  confinement  in  a  peni- 
tentiary by  the  laws  of  Arizona.  A  sentence  of  court-martial  imposing  this  punishment, 
on  conviction  of  an  offense  of  this  description  committed  in  this  Territory,  charged  as  a 
crime  under  Article  62,  //eM  atithorized  by  Article  97.     Ibid.,  par.  12. 

A  conviction  of  a  larceny  of  property  of  such  slight  value  as  not  to  authorize  this 
punishment  under  the  local  law  would  not  warrant  a  sentence  of  confinement  in  a  peni- 
tentiary. In  a  case  of  larceny  the  court  should  inform  itself  as  to  whether  the  value  of 
the  property  stolen  be  not  too  .small  to  permit  of  penitentiary  confinement  for  the  offense 
under  the  law  of  the  State,  etc.*    Ibid.,  par.  13. 

A  punishment  of  confinement  in  a  penitentiary,  where  letral,  may  be  mitigated  to 
confinement  in  a  military  prison  or  at  a  military  post.     Ibid.,  116,  par.  1-5. 

A  discharged  soldier  serving  a  sentence  Of  confinement  in  a  State  or  Territorial 
penitentiary  still  remains  under  military  control,  at  least  so  far  as  that  his  sentence  may, 
by  competent  military  authority,  or  by  the  President,  be  remitted,  or  may  be  mitigated 
— as,  for  example,  to  confinement  in  a  military  prison  or  at  a  military  post.  Where  the 
place  of  confinement  is  a  State  or  Territorial  penitentiary  which  is  within  a  department 
command,  the  commander  may  legally  remit  or  mitigate  the  sentence.  But  the  President 
may  limit  this  authority  by  excluding  such  penitentiaries  from  the  department  coinmand. 
(But  now  the  function  of  remitting  the  sentences  of  discharged  soldiers  confined  in 
penitentiaries  is,  bv  orders,  restricted  to  the  President.  Paragraph  916,  Army  Kegula- 
lions  of  1895,  Circular  No.  5  (H.  A  ),  1888.)    Ibid.,  par.  16. 

'  The  several  statutes  respecting  the  confinement  of  enlisted  men  in  the  Military  Prison 
relate  to  the  particular  establishment  located  at  Fort  Leavenworth,  Kansas,  by  the  Acts 
of  March  3,  1873,  (17  Stat,  at  Large,  582,)  and  May  21.  1874  (18  ibid.,  48).  By  the  Act 
of  March  2,  1895,  (27  Stat,  at  Large,  957,)  the  pri.son  buildings  at  Fort  Leavenworth  wer» 

*  See  G.  O.  44,  Eighth  Army  Corps,  1862;  G.  C.  M.  O.  63,  Dept.  of  the  Platte,  1872. 


PUNISUMENTS.  187 

oner."'  Such  imprisonment  is  regulated  by  the  statutes  creatinf>  the 
Military  Prison,  and  by  the  standing  orders  of  the  War  Department  in  re- 
spect to  the  confinement  of  such  prisoners  at  military  posts;"  and  (c)  by 
simple  continement,  as  a  "  garrison  prisoner,"'  in  the  guard-liouse  at  a 
military  post.* 

Confinement  at  Hard  Labor. — This  form  of  confinement  is  that  usually 
imposed  as  a  punishment  of  enlisted  men.  The  kind  and  amount  of  hard 
labor  re(|uired  are  regulated  by  (Jeneral  Orders  of  the  War  Department.* 

Confinement  with  Ball  and  Chain. — This  punishment,  although  autho- 
rized as  to  enlisted  men  by  custom  cf  service,  is  imposed  only  in  extreme 
cases,  as  where  the  place  of  confinement  is  insecure,  or  where  escape  is 
feared.  In  a  sentence  imposing  this  form  of  punishment  the  weight  of 
the  ball,  the  length  of  the  chain,  etc.,  should  be  expressly  set  forth  in  the 
sentence.' 

Solitary  Confinement. — This  punishment,  long  recognized  by  custom  of 
service,  is  now  expressly  authorized,  in  the  order  of  the  President  prescrib- 
ing limits  of  punishment,  by  way  of  substitution  for  forfeiture  of  pay  or 
confinement  at  hard  labor,  subject,  however,  to  the  restriction  that  it 
"  shall  not  exceed  fourteen  days  at  one  time,  nor  be  repeated  until  fourteen 
days  have  elapsed,  and  shall  not  exceed  eighty-four  days  in  one  year." ' 

It  has  been  seen  that  a  sentence  imposing  confinement  must  be  specific 
as  to  the  duration  of  the  imprisonment,'  and  as  to  the  character  of  the  con- 
finement imposed,  as  solitary  confinement,  confinement  at  hard  labor,'  or 

transferred  to  the  Department  of  Justice,  and  ttie  military  prison  eo  nomine  was  discon- 
tinued. Prisoners  of  the  class  formerly  sentenced  to  periods  of  continement  at  the 
Military  Prison  are  now  sentenced  to  imprisonment  at  such  military  posts  as  may  be  des- 
ignate(l  by  the  reviewing  authority,  and  are  subject  to  such  statutory  or  executive 
regulations  as  may  be  enacted  by  Congress  or  published  by  the  President. 

'  See  (ren.  Orders  55,  A.  G.  O.,  of  1895,  for  rules  hxing  the  status  of  these  classes  of 
prisoners. 

-  See  Gen.  Orders  No.  55,  A.  G.  O.,  1895. 

'  Ibid. 

*  See  iiar.  1(5,  Gen.  Orders  No.  55,  War  Dept.,  1895. 

'  ^Manual  for  Courts-marl ial,  50,  jiar.  3;  ibid..  70,  par.  3. 

'  Ibid..  62.  Art.  VII.  Held  that  a  sentence  of  two  months'  confinement,  which 
prescribed  that  the  confinement  for  two  days  out  of  every  three  should  be  solitary,  was 
unauthorized  as  transcending  the  proportion  fixed  in  the  order  of  the  President  establish- 
ing limits  of  punishment  ;  such  sentence  in  fact  requiring  that  the  confinement  should 
be  solitary  for  forty  days  out  of  sixty,  while  the  order  authorizes  but  eiglity  fuur  days  of 
solitary  continement  in  an  entire  year.     Dig   J.  A.  Gen.,  708. 

'  A  sentence  which,  in  imposing  confinement  (or  imprisonment — the  two  terms  being 
practically  s3'nonymous  in  sentences  of  courts  martial),  fails  clearly  to  indiciite  how 
long  the  same  is  to  continue  is  irregular  and  inoperative.  Such  a  sentence  should  be 
disapproved  by  the  reviewing  authority  unless  it  can  be  procured  to  be  corrected  by  a 
reassembling  of  the  court  for  the  purpose.     Dig.  .J.  A.  Gen.,  439,  par.  1. 

*  Where  an  othceror  soldier  is  sentenced  merely  to  a  term  of  confinement  without  the 
acldiiion  of  "'  hard  labor,"  while  he  may  properly  be  required  to  perform  the  ordinary 
domestic  or  police  work  directed  by  the  sanitary  regulations  of  the  prison,  he  cannot 
properly  be  put  to  unusual  labor  of  a  severe  and  continuous  character.  Thus  held  that 
to  recpiire  a  soldier  sentenced  siinjily  to  be  I'onfined,  and  confined  accordingly  at  Alca- 
traz  Prison,  to  work  daily  at  blasting  and  quarrying  rock  was  adding  to  the  puniahinent, 
and  therefore  unaiuhorized.     To  a  proper  execution,  however,  of  a  sentence  of  confine- 


188  MILITARY  LAW. 

on  bread-and-water  diet,  and  the  like;  a  sentence  awarded  under  the  97th 
Article  of  War  should  also  be  specific  as  to  the  place  where  the  sentence  is 
to  be  executed,  as  at  a  State  prison  or  penitentiary;  although  the  particular 
prison  or  penitentiary,  however,  need  not  be  designated  or  named  in  the 
sentence; '  in  which  it  would  be  proper  to  use  the  words  "at  such  place  as 
the  reviewing  authority  may  direct,"  leaving  it  to  the  reviewing  officer  to 
designate  a  lawful  place  of  confinement  in  which  the  sentence  imposed  may 
be  executed." 

Confinement  beyond  Expiration  of  Sentence. — It  is  now  established  by  a 
lono'  series  of  precedents  that  a  general  court-martial  is  authorized  to 
adjudge,  by  sentence,  a  term  of  imprisonment  to  extend  beyond  the  end  of 
the  pending  term  of  enlistment  of  the  soldier,  or  beyond  his  legal  period  of 
service.  Thus,  for  example,  where  the  term  of  the  enlistment  of  the 
accused  has  still  a  year  to  run,  the  court — the  gravity  of  the  offense  justify- 
ing it — may  sentence  him  to  an  imprisonment  for  two  years  or  longer;  so  it 
may  sentence  him  to  be  dishonorably  discharged  (thus  itself  discontinuing 
his  period  of  service)  and  then  confined  for  a  designated  term.  And  such 
sentences  may  be  executed  with  the  same  legality  as  any  other  sentences  of 
imprisonment.  In  the  former  case  the  soldier  will  not  be  entitled  to  be 
released  from  the  confinement  at  the  end  of  his  enlistment,  nor  in  the 
latter  will  he  become  so  entitled  upon  the  execution  of  the  discharge.  In 
each  case,  upon  the  determination  of  the  enlistment  or  service,  the  party 
continues  to  be  held  under  his  sentence  not  as  a  soldier  but  as  a  civilian 
United  States  convict.' 

Execution  of  Sentence. — The  old  rule  that  the  term  of  a  confinement  (of 
so  many  months,  years,  etc.)  imposed  by  sentence  of  court-martial  com- 
menced on  the  day  on  which  the  prisoner  was  delivered  to  the  proper  officer 

ment  a  secure  keeping;  of  tlie  person  is  of  course  esseutiul.  Where,  therefore,  it  is  not 
possible  otherwise  to  prevent  u  prisoner's  escape  or  to  prevent  violence  on  his  part,  he 
jnay  be  iVo/i^'i  witJKMU  adding  to  ihe  punishpient.  But  such  exceptional  restraint  can- 
not legally  be  imposed  except  where  tluis  necisadri/.     Dig.  J.  A.  Gen.,  441,  par.  7. 

It  is  not  adding  to  the  i)unishnient,  in  executing  a  sentence  of  confinement,  to  require 
the  pri.soner  to  perform  work  prescribed  for  prisoners  of  his  class  by  the  s!!«<M/e  law. 
Thus  persons  sentenced  to  imi)risonmetit  at  tlie  Mililnry  Prison  at  Leavenworth  may 
legally  be  employed  in  the  labor  or  at  tlie  trades  indicated  by  iSec.  1351,  Rev.  Sts. 
Ibid.,  442,  p;ir.  8. 

'■  In  imposing  a  .'sentence  of  confinement  at  a  military  pri.son,  the  court  should  properly 
add  "  at  such  prison  as  the  proper  authority  may  designate,"  or  in  words  to  that  effect.* 
To  direct  that  the  place  of  confinement  be  designated  by  an  officer  inferior  to  the  con- 
vening authority  is  irregular  and  improper.     Ibid.,  439,  par.  2. 

■^  Dig.  .J.  A.  Gen.,  440,  i)ar.  3.  Wlici'e  the  ajjprovnl  of  a  sentence  of  confinement  in  a 
case  of  a  .soldier,  in  which  proceedings  had  been  duly  commenced  pending  his  term  of 
enlistment,  was  not  pronuilgated  till  after  such  term  had  a(!lually  expired,  but  no  dis- 
charge h;id  been  given  to  the  soldier  before  promulgation,  Jieltl  that  it  would  be  legal  to 
subject  liim  to  the  confinement  adjudged  by  the  sentence.     Ibid. 

*  It  is  not  ud'linj?  to  the  punishment,  and  is  authorized  at  military  law,  for  the  commander  who 
ordered  tlie  original  commitiiient,  or  his  propHf  superior,  to  cJuinge  the  place  of  confinement  of  a 
prisoner,  if  such  a  cliansre  is  required  b\  the  e.vifj'^ncies  of  the  service,  provided  that  no  more  severe 
species  of  conflnerneut  than  that  contemplated  iu  the  sentence  is  enforced  after  the  transfer.  Ibid., 
442,  par.  9. 


P  U^'ISIIMENTS.  189 

. — ao  the  officer  in  charge  of  the  prison  or  conunanding  the  post — to  be  con- 
fuied  according  to  tiie  sentence,  having  been  found  inconvenient  in  practice, 
there  was  subtitituted  for  it,  by  (ieneral  Order  21,  Ildqrd.  of  the  Arniv,  of 
1870,  tiie  rule  that  "  tlie  conlinement  sliall  be  considered  as  coninienciujr  at 
the  date  of  the  promulgation  of  the  sentence  in  orders."  This  rule  Ijeing 
more  favorable  to  prisoners  than  the  old  one,  its  authority  is  not  known  to 
have  ever  been  questioned.' 

A  sentence  of  coniiuenient  is  executed  by  sending  tlie  party  under  a 
proper  guard  to  the  jjrison  or  other  place  of  confinement  duly  designated, 
and  at  the  same  time  transmitting  to  the  oflicer  there  in  charge  or  command 
a  copy  of  the  order  approving  the  sentence  and  ordering  the  execution, 
together  witli  such  other  papers  as  are  required  to  exhibit  the  status  of  tlie 
soldier.' 

The  duty  of  a  post  commander  with  regard  to  the  holding  and  restraint 
of  a  prisoner,  sentenced  to  be  confined  at  the  post,  is  not  affected  by  the  fact 
that  the  prisoner  was  adjudged  by  the  same  sentence  to  be  dishonorably  dis- 
charged and  has  been  discliarged  accordingly.  The  amenability  to  prison 
discipline  continues  during  the  term  of  the  confinement;  although,  except 
at  the  LeavenAvorth  Military  Prison,  the  prisoner  cannot  legally  be  brouglit 
to  trial  by  court-martial  for  misconduct  during  such  term.' 

A  prisoner  not  expressly  required  by  his  sentence  to  be  confined  in  irons 
cannot  legally  be  subjected  to  such  form  of  confinement  except  where  there 
is  sufficient  ground  to  apprehend  serious  violence  on  his  part  or  an  attempt 


'  Dig.  J.  A.  Gen.,  441,  par.  5. 

'  Dig  .J.  A.  Gen.,  489,  par.  2.  Where  a  soldier  while  undergoing  a  sentence  of  confine- 
ment is  brought  to  trial  for  a  further  ofTen.se,  and,  on  conviction,  is  sentenced  to  a 
further  term  of  imprisonment,  the  punishment  thus  adjud'j^edis  nimuludve  upon  that 
pending,  and  its  execution  will  properly  commence  at  tlie  date  when  the  pending  con- 
linement ternunates,  whether  hy  expiration  of  time  or  bj-  rennssion.  To  render  a  pun- 
ishment thus  cumulative,  it  is  not  required  that  it  should  be  designated  as  such  by  the 
court  in  the  sentence.     Ibid.,  444,  par.  15. 

Where  a  soldier  was  at  two  successive  trials  tried  for  separate  offenses  and  was  sen- 
tenced upon  the  first  trial  to  dishonorable!  discbarge  and  imprisonment,  atid  upon  the 
second  to  further  imprisonment,  and  the  two  sentences  were  approved  and  promul- 
gated in  orders  bearing  the  same  date,  /leld  that,  as  the  law  does  not  recognize  fractions 
of  a  day,  these  sentences  were  to  be  regarded  as  having  gone  into  operation  at  the  s:ime 
moment  and  taken  effect  as  one  sentence,  Sf)  that  the  execution  of  the  dishonorable  dis- 
charge  imposed  by  the  former  sentence  did  not  affect  the  enforcement  of  the  punish- 
ment of  confinement  imposed  by  the  latter  sentence,  but  that  the  .same  was  legally 
enforceable  as  cumulative  or  rather  continuing  upon  the  term  of  confinement  imposed 
by  the  former  sentence.     Ibid.,  par.  16. 

'  Ibid.,  445,  par.  23.  See,  also.  Sec.  1361,  Rev.  Sis.  Where  a  deserter  under  sen- 
tence of  confinement  escaped,  re-enlistod.  deserted  from  his  second  enlistment,  and, 
upon  arrest,  was  again  sentenced  to  confinement,  held  that  he  was  legally  liable  to  he 
subjected  to  both  terms  of  confinement,  the  second  as  a  cumulative  punishment  upon 
the  first.     Ibiil.,  446,  par.  24. 

A  remission  of  part  of  a  sentence  of  confinement  has  the  effect  of  leiving  the  reduce*! 
sentence  as  though  it  were  the  original,  and  the  prisoner  will  be  entitled  to  the  time 
allowance  for  good  conduct  precisely  as  if  the  original  term  had  not  been  reduced. 
Ibid.,  par.  25. 


190  MILITARY  LAW. 

to  escape.  A  mere  threat  of  violence  would  not  ordinarily  justify  the  use  of 
shackles  or  fetters. ' 

Fines  and  Forfeitures.' — What  has  already  been  said  in  respect  to  fines 
and  forfeitures  applies  equally  to  commissioned  officers  and  enlisted  men. 

Reprimands. — The  punishment  of  a  reprimand  is  one  usually  imposed 
upon  commissioned  officers  only;  in  rare  cases,  however,  it  has  been 
imposed  upon  non-commissioned  officers  of  the  higher  grades.  When  so 
awarded  the  reprimand  is  administered  by  the  reviewing  authority,  as  has 
been  described  in  the  case  of  a  commissioned  officer.^ 

'  Dig  J.  A.  Gen.,  446,  par.  23.     See,  also,  note  5,  p.  187,  ante. 

*  See  the  titles  Fines  and  Forfeitures  in  the  article,  supra,  entitled  "  Punishments  of 
Commissioned  Officers." 

Detention  of  Pay. — The  detention  of  pay  in  the  case  of  enlisted  men  was  authorized, 
as  a  punishment  to  be  intiicled  by  courts-martial,  by  G.  O.  21,  A.  G.  O.,  of  1891.  The 
effect  of  a  sentence  detaining  the  whole  or  a  part  of  the  monthly  pay  of  a  soldier  was  to 
prevent  the  amount  so  detained  from  being  paid  to  the  offender  until  liis  di.scharge. 
The  practice  was  abolished  by  General  Orders  No.  25,  A.  G.  O.,  of  July  19,  1894. 

^  See  the  title  lieprimand,  supra.  In  the  British  service  courts-martial  are  forbidden 
to  sentence  enlisted  men  to  be  reprimanded.  Simmons,  7th  ed.,  58  ;  Manual  for  Courts- 
martial,  270. 


CHAPTER   X. 

THE    KECORD. 

General  Character. — The  Articles  of  War  require  all  courts-martial  to 
make  uud  keep  formal  records  of  their  jjroceedings,  and  the  Army  Regula- 
tions and  the  official  Manual  for  Courts-martial  contain  specific  directions  as 
to  the  form  and  substance  of  these  records  in  certain  ])articulars.'  By  a 
gradual  process  of  development  the  record  of  a  court-martial  has  come  to  be, 
in  our  practice,  a  full  report  or  recital  of  the  details  of  the  trial  in  each 
case,  including  all  the  testimony  introduced,  together  with  the  pleas,  argu- 
ments, and  statements  submitted  to  the  court  during  the  progress  of  the  trial, 
in  which  respect  it  differs  from  a  judicial  record  in  the  civil  procedure.* 

The  legal  record  of  a  court-martial  is  that  record  which  is  finally 
approved  and  adopted  by  the  court  as  a  body,  and  authenticated  by  the 
signatures  of  its  president  and  judge-advocate.  The  record  is  kept,  that  is, 
the  proceedings  are  recorded,  by  the  judge-advocate,  but  the  court  as  a 
whole  is  responsible  for  it,  and  the  instrument  which  it  approves  as  such  is 
its  record,  however  the  same  may  have  been  made  up.  It  is  immaterial  to 
the  sufficiency  of  a  record  whether  the  same  was  kept  or  written  by  the 
judge-advocate  or  by  a  clerk.' 

Contents  of  the  Record;  General  Rule. — In  connection  with  the  prep- 
aration of  the  record,  the  question  arises  as  to  what  portions  of  the 
proceedings  shall  be  incorporated  in  the  record  and  what  portion,  if  any, 
shall  be  excluded.  In  reply  it  may  be  said  that,  as  a  general  rule,  every- 
thing which  takes  place  in  open  court  goes  upon  the  record,  and  that  no 
deliberations,   discussions,    or  other   proceedings   had  in  closed  court   are 


>  Di?  .1.  A.  Gen..  639.  par.  1  ;  llStb  and  114th  Articles  of  War  ;  Section  1199,  Rev. 
Slat.;  paragraphs  9.J-4-957,  A.   R.  1895;  Manual  for  Courts-martial,  pp.  65,  66. 

-  Although  its  proceeediugs  are  required  to  be  full}'  recorded,  a  court-uiartial  is  not  a 
court  of  record  in  the  legal  acceptation  of  the  term.  A  court-martial  record  is  a  complete 
narrative  of  the  proceedings,  in  a  particular  case,  from  beginning  to  end,  and  includes 
not  only  the  acts  of  the  court,  but  the  action  of  the  reviewing  authority  as  well.  The 
record  in  an  action  at  law,  civil  or  criminal,  is  much  less  full  than  that  required  to  be 
kept  by  a  n^ilitary  tribunal  ;  part  of  it  consists  in  entries  in  books  of  record,  a  jmrt 
is  entered  upon  rolls,  and  other  parts  consist  of  pleas  and  motions  wluch  are  preserved 
and  filed  in  the  office  of  the  clerk.  See  Chambers  vs.  Jennings,  7  Modern,  125  ;  Ex  parte 
Watkins,  3  Peters.  209  ;  Wilson  rs.  John.  3  Hinney.  215. 

'  Dig.  J.  A.  Gen.,  649,  par.  5.  So  where  a  clerk  or  reporter  appointed  and  sworn  to 
keep  tlui  record  did  not  act,  but  the  record  w.as  prepared  by  the  jiuige-advocUe  or 
some  other  person  employed  by  him  to  assist  him,  field  that  this  cirr\mistance  did  nt't. 
affect  the  validity  of  the  record  as  finally  approved  by  the  court.     Jbid. 

191 


192  MILITAliY  LAW. 

entered  upon  tlie  record,  except  the  findings,  sentence,  or  other  decision  or 
conclusion  reached  as  a  result  of  deliberation  in  closed  session. 

In  view,  therefore,  of  the  requirement  of  the  Army  Regulations  that 
"  every  court-martial  shall  keep  a  complete  and  accurate  record  of  its  pro- 
ceedings," the  entire  proceedings  and  action  of  the  court  during  the  trial 
should  be  fully  set  forth,  including  the  organization,  challenges  to  members 
(if  any),  arraignment,  pleas,  testimony  of  witnesses,  and  documentary 
evidence,  motions,  and  objections,  with  the  substance  of  the  arguments  (if 
any)  thereon,  rulings  of  the  court  on  interlocutory  questions,  adjournments, 
continuances,  closing  addresses  or  statements,  findings,  and  sentence — in 
short,  every  part  and  feature  of  the  proceedings  material  to  a  complete  his- 
tory of  the  trial  and  to  a  correct  understanding  by  the  reviewing  officer 
both  of  the  merits  of  the  case  and  of  the  questions  of  law  arising  in  the 
course  of  the  investigation.  Where  a  sentence  is  pronounced  the  record 
should  contain  everything  necessary  to  sustain  it  in  fact  and  in  law.' 

Separate  Record  of  Each  Case  Tried. — Where  several  cases  are  tried  by 
a  court-martial,  the  record  of  each  case  should  be  complete  in  itself 
and  as  much  an  entirety,  both  in  form  and  in  substance,  as  if  it  were  the 
only  case  tried.  Each  record  should  be  separate  and  distinct  from  every 
other  record,  containing  all  that  is  essential  to  an  original  and  independent 
official  jjaper,  and  so  perfected  as  to  leave  no  material  detail  to  be  supplied 
from  any  previous  or  other  record.  As  ''  the  proceedings  in  each  case  are 
required  to  be  made  up  separately,"  '^  records  should  not  be  attached 
together,  but  should  be  prepared  and  transmitted  as  disconnected  docu- 
ments.' 

Contents  of  the  Record. — The  copy  of  the  convening  order  should 
properly  be  prefixed  to  the  proceedings,  as  constituting  the  initial  authority 
for  the  existence  and  action  of  the  court.  Tliis  order  should  of  course  be 
complete,  and  should  exhibit  by  its  heading  and  its  subscription  that  it  has 
proceeded  from  a  commanding  officer  competent  to  order  the  court.* 

Where  several  cases  are  tried  by  the  same  court,  a  separate  copy  of  the 
order  should  accompany  the  record  in  each  case;  to  prefix  a  single  copy  to 
the  first  of  a  series  of  records  attached  together  is  irregular  and  in  viola- 
tion of  tlie  requirement  that  every  record  should  be  complete  in  itself.* 
Where  subsequent  orders  have  been  issued  adding  or  relieving  members  or 
a  judge-advocate,  or  otherwise  modifying  the  original  convening  order, 
copies  of  these  should  follow  the  original  or  be  elsewhere  incorporated  in  the 
record.     In  their  absence  it  may  not  be  possible  to  determine,  on  the  face 

'  Dig.  J.  A.  Gen.,  640,  par.  1,  a.    Compare  Coffin  rs.  Wilbour,  7  Pick   (Mass.),  151. 

'  Oiir.  J.  A.  Gen.,  641,  par.  1,  J).     See,  also.  Manual  for  Courts -martial,  65,  par.  1. 

^  Ihid.     See,  also,  i)ar.   9.1J,  A.  R.  1895. 

*  Ibid.,  par.  1,   c. 

'  Ibid.     See,  also.  Manual  for  Courts-martial,  e*),  par.  1. 


rilE  RECORD.  19 


Q 


of  the  record,  wlietlier  the  oflicers  who  composed  the  conrt  on  the  trial  were 
actually  or  legally  detailed  therefor,  or  whether  the  prosecuting  judge- 
advocate  or  the  judge-advocate  wlio  authenticates  the  proceedings  was  so 
detailed.' 

Organization  of  the  Court. — The  record  should  sliow  that  the  court  met 
and  organized  ]»ursuant  to  the  order  or  orders  constituting  it.  It  is  neces- 
sary, to  the  due  organization  of  a  general  court-martial,  first,  that  there 
should  assemble  at  the  time  and  place  indicated  in  the  order  at  least  a 
quorum,  i.e.,  five,  of  the  officers  detailed  as  members.  And  the  record 
should  show  that  at  least  five  members  were  present  and  acting,  not  only  at 
the  original  assembling,  but  also  at  every  day's  session  tliroughout  the  trial, 
from  the  beginning  to  the  end." 

The  record  should  show  that  the  order  or  orders  convening  the  court 
and  detailing  the  members  were  read  to  the  accused  or  communicated  to 
liim,  and  that  he  was  afforded  an  opportunity  of  objecting  to  any  member, 
that  is  to  say,  that  the  privilege  of  challenge  accorded  and  defined  by  the 
88th  Article  of  War  was  extended  to  him/  This  testing  of  the  members 
is  the  second  essential  to  the  due  organization  of  the  court,  and  though  the 
phraseology  of  the  question  put  to  the  accused,  or  of  his  answer  thereto,  need 
not  be  given  in  the  record,  it  should  clearly  appear  either  that  he  had  (or 
made)  no  objection,  or  if  he  made  any,  what  it  was.* 

'  Dig.  J.  A.  Gen.,  641,  par.  1,  c.  In  connection,  however,  with  any  order  making  a 
change  in  ihe  original  (ietail  of  members  or  substituting  a  new  judge-advocate,  the  record 
sliould  note  tlie  fact  of  tiie  new  member  taiiing  his  seat,  or  new  judge  advocate 
commencing  to  officiate,  according  to  the  order,  on  a  certain  day.  Wliere  less  than 
thirteen  members  are  detailed  in  tlie  original  order,  it  has  been  usual  to  add  therein  a 
statement  to  the  effect  that  "  No  other  officers  than  those  named  can  be  assembled 
without  manifest  injury  to  the  service."  Such  addition,  however,  is  not  required  by 
Article  7o,  and  is  not  essential.     Ibid. 

Recommdnded  that,  after  the  record  of  the  organization  ;it  the  first  session,  there  be 
simply  entered  at  the  beginning  of  a  day's  session:  "  Present  all  the  members  and  the 
judge-advocate."  Also,  that  whun  tlx-  absence  of  an  officer  who  has  not  qualilied  or  has 
been  relieved  or  excused  has  been  accounted  for,  no  further  notice  be  taken  of  it.  Ibid., 
650.  par.  7.     See  Manual   for  C'ourls-mariial.  p.  1:20.  note  2. 

■^  Dig.  J.  A.  Gen.,  641,  par.  1,  (/.  The  record  of  a  trial  by  court-marlial  should 
include  a  record  of  meetings  where  no  business  is  transacted.  Ibid.,  650,  par.  6.  It  is 
not  customary  to  take  notice  in  the  record  of  a  mere  recess;  but  if  a  recess  be  noted  at 
all,  it  should  "appear  from  the  record  that  on  the  reassembling  the  members,  judge- 
advocate,  and  accused  were  duly  present.      Ibid.,   par.  8. 

The  importance  of  keeping  an  accurate  record  of  adjournments  arises  from  the  fact 
that  by  such  record  the  court  retains  jurisdiction,  once  lawfully  attached,  in  a 
particular  case. 

^  Dig.  .1    A.  Gen..  641,  par.  1,  e.    Compare  Long  w.  State,  52  Miss.,  23. 

■•  Dig.  J.  A.  Gen.,  642.  jiar.  1,  e  Where  a  specitic  challenge  is  offered,  it  sliould 
prefeiablv  be  recorded  in  the  terms  in  which  it  is  e.\]>resscd  by  the  accuscil;  and.  in 
connection  with  each  challenge,  the  record  should  set  forth  the  remarks  of  the  member, 
if  any,  and  the  action  of  the  court,  as  also,  if  an  issue  be  joined  on  the  challenge,  the 
evidence,  if  any,  introduced,  and  the  substance  of  the  argimient  had.  Where  a  mem- 
ber is  added  to  the  court  at  a  subsequent  stage  of  the  proceedings,  the  record  should 
similarly  show  that  the  accused  was  afforded  an  opportunity  of  objecting  to  him.  and 
set  forth  the  action  taken  if  objection  was  ma<le.  It  may  be  added  that  while,  with  the 
convening  order,  any  subse<|uent  orders  by  which  the  original  detail  mav  have  been 
modified  should  be    read   to   the  accused,   the  fact  that  other    orders    relating  to  the 


194  MILITARY  LAW. 

Swearing  of  Court. — The  record  should  show,  as  the  final  essential  to 
the  due  organization  of  the  court,  that  the  members  and  judge-advocate 
were  qualified  by  being  duly  sworn.  And  this  should  be  shown  in  the 
record  of  every  case  tried  by  the  same  court,  since  the  court  and  the  judge- 
advocate  must  be  sworn  independently  and  anew  for  each  trial.' 

Arraignment  of  Accused,  Pleas,  etc. — The  record  should  further  set 
forth  tlie  arraignment  of  the  accused  on  the  charges  and  specifications,  with 
the  plea  or  pleas  made.  The  charges  and  specifications  should  properly  be 
embodied  in  the  record  instead  of  being  referred  to  as  annexed.  If  special 
pleas  are  interposed,  the  issue  joined  and  action  taken  upon  the  same  should 
be  clearly  stated.' 

Testimony. — The  record  should  fully  set  forth  all  the  testimony  intro- 
duced upon  the  trial — the  oral  portion  as  nearly  as  practicable  in  the  precise 
words  of  the  witness.  For  a  judge-advocate  to  assume  to  record  only  such 
testimony  as  he  considered  material,  or  to  summarize  the  testimony  given, 
has  been  remarked  upon  as  a  gross  irregularity.  It  is  usual  and  proper 
(though  not  essential)  to  specify  by  whicli  party  the  witness  is  introduced 
and  by  whom  the  questions  are  put.  It  is  also  usual  to  designate  the  point 
at  which  the  prosecution  is  closed  and  the  testimony  for  the  defense  is  com- 
menced.^ 

It  should  appear  that  each  witness  (whether  or  not  his  evidence  was 
important)  was  duly  sworn,  but  it  is  not  customary  to  add  that  he  was 
sworn  in  the  presence  of  the  accused.  Objections  taken  to  the  admissibility 
of  testimony  should  be  set  forth  with  the  substance  of  the  argument  had 


court,  but  not  to  its  personnel, — such  as  an  order  changing  the  place  of  meeting  or  an 
order  authorizinsj  the  court  to  sit  without  re.sxard  to  hours,— may  not  have  been  so  read 
■will  not  constitute  an  irregularity.  It  is  usual,  however,  and  proper  to  read  all  such 
orders,  equally  with  those  relating  to  the  composition  of  the  court,  in  the  presence  of  the 
accused.*    Dig.  J.  A.  Gen.,  643,  par.  1,/. 

'  Ibid.,  par.  1,/.  The  form  that  "The  members  of  the  court  and  the  judge-advo- 
cate were  then  duly  sworn,"  is  a  proper  one  for  the  statement  of  the  qualifying  of  a 
general  court. f  Any  statement,  however,  will  be  legally  sufficient  from  which  it  can  be 
gathered  by  the  reviewing  officer,  or  presumed,  that  the  members  and  judge-advocate 
were  in  fact  qualified  as  required  by  Articles  84  and  8r).  Where  an  absent  member  joins 
or  a  new  member  is  added  to  the  court,  or  the  first  ji-idge-advocate  is  relieved  and  a  new 
judge-advocate  is  detailed,  at  a  stage  of  the  proceedings  subsequent  to  the  original 
organization  and  qualifying,  the  record  should  show  that  such  member  or  judge-advo- 
cate, before  acting,  was  sworn  as  above  indicated.  Where  several  persons  are  tried 
together  the  record  will  properly  show  that  the  oath  was  tnken  in  the  presence  of  all 
the  accused.     IMd.,  2.  d. 

-  Ibid.,  644,  par.  1,  g.     See,  also,  the  title  "Pleas"  in  the  Appendix. 

'  Ibid.,  par.  1,  h. 


*  Compare  Coffin  vs.  Wilbour,  7  Pick.,  150.  It  is  not  considered  a  compliance  with  par.  9.'i4,  Army 
(legulalioris.  directing  that  the  court  is  to  be  sworn  at  the  commencement  of  each  trial,  to  call 
several  prisoners  into  court  at  the  same  time  and  swear  the  members  of  the  court  orice  before  them 
»11.    G.  O.  60,  War  Der't.,  187.3. 

+  See  this  opinion  adopted  in  G.  C.  M.  O.  1-',  Hdqrs-  of  Army,  1877. 

The  inversion  of  the  proper  order  of  sweariiijr  the  court  and  judge-advocate  was  held  by  the 
Attorney-General  (13  Opins.,  374)  not  to  have  invalidated  the  proceedings  of  a  naval  court-martial. 


THE  RECORD.  195 

thereon,  if  any,  and  the  rnling  of  the  conrt;  and  where  the  court  is  cleared 
on  any  interlocutory  objection,  the  fact  will  properly  be  noted.' 

It  is  not  necessary  to  encumber  a  record  by  spreading  npon  it  documents 
or  other  writing  or  matter  excluded  by  the  court.  But  it  should  specify 
the  character  of  the  writing  and  the  grounds  upon  which  it  was  ruled  out.* 

Finding  and  Sentence. — The  record  should  state  the  finding  on  each  of 
the  several  charges  and  specifications,  and  the  sentence  in  the  event  of  a  con- 
viction. In  a  case  of  a  death-sentence  it  is  usual  (though  not  essential, 
not  being  required  by  the  9Gth  Article)  to  state  that  it  was  concurred  in 
by  two  thirds  of  the  members.  Care  should  be  taken  that  there  be  no 
variance  in  the  statement  of  the  name,  etc.,  of  the  accused  between  the 
finding  or  sentence  and  the  charges.' 

Authentication  of  Record. — The  record  should  be  "  authenticated  "  by 
the  signatures  of  the  president  and  the  judge-advocate.*  Wiiere,  indeed, 
there  are  no  material  proceedings  after  the  sentence,  the  subscription  of 
the  same  by  these  officers  will  constitute  a  sufficient  authentication  of  the 
record  as  a  whole.  Where  the  president  or  the  judge-advocate  has  been 
changed  pending  the  trial,  it  is  of  course  the  last  one  who  is  to  sign  the 
record.  Adjournments  from  day  to  day  are  not  required  to  be  authenti- 
cated.^ 

Presumption  as  to  Jurisdiction,  etc. — Unless  it  clearly  aj^pears  to  the 
contrary  on  the  face  of  the  record,  it  is  in  general  to  be  presumed  therefrom 
not  only  that  the  court  had  jurisdiction  in  the  case,  but  also  that  the  pro- 
ceedings were  sufficiently  regular  to  be  valid  in  law." 


'  Diff.  J.  A.  Gen.,  fi44,  par.  \,  h. 
'  Ibid.,  651,  par.  14, 
^  Ibid.,  645,  pur.  \,  i. 

*  Par.  954,  A.  R.,  1895. 
»  Jbid. 

*  Ibid.,  647,  par.  3.  Among  the  minor  points  held  by  the  Judge- Advocate  General, 
in  connection  witli  tiie  subject  of  the  form  of  tlie  record,  are  the  following  :  That  the 
several  stages  of  the  proceedings  of  tlie  court  should  appear  in  the  record  in  the  proper 
order;  thus,  that  the  swearing  of  the  court  should  not  be  recorded  before  the  statement 
as  to  whetiier  llie  accused  objected  to  any  of  tlie  members,  etc.  That,  in  its  statement 
of  the  opening  of  each  day's  session,  the  record  may  well  mention,  if  such  was  tlie  fact, 
that  tiie  proceedings  of  the  previous  da\' or  session  df  any  were  had  in  the  soj/ie  case) 
were  read  and  approved.  Such  a  reading,  however,  though  desirable  as  giving  the  court 
an  opportunity  to  make  corrections,  is  often  not  resorted  to,  and  even  wliere  it  is,  is  not 
always  noted  in  the  record.  That,  except  where  the  court  is  specilically  authorized  to 
sit  "without  regard  to  hours,"  the  record— though  this  is  not  essential,  the  94th  Article 
of  War  not  reiiuiiing  it — may  wt'll  set  forth  the  hours  of  assembling  and  adjourning,  so 
that  it  may  ai^peur  that  its  sessions  did  not  conunence  earlier  than  8  o'clock  a.m.,  or 
continue  later  than  3  o'clock  i'..M.  Tiiat,  though  par.  10138,  Arm}-  Regulations,  in 
directing  that  "the  record  shall  be  clearly  and  legibly  written"  and  "as  far  as  practica- 
ble without  erasures  or  interlineations,"  contemplates  that  the  record  will  be  written  by 
liand,  there  is  no  legal  objection  to  printing  the  record,  or  any  part  of  it  (such  as  the 
charges  and  specilications  where  luunerous),  provided  of  course  the  signatures  of  the 
president  and  judge-advocate  are  written  by  them  in  person.  That  the  record  will 
conveniently  and  properly  be  indorsed  on  the  outside,  or  cover,  so  that  the  name  of  the 


196  MILITARY  LAW. 

Revision  Proceedings. — Where  the  court  is  reassembled  for  the  purpose 
of  a  revisio/i  of  its  proceedings  in  any  particular,  the  record  should  formally 
recite  all  that  is  ordered  and  done  as  a  new  and  independent  chapter  of  the 
history  of  the  case  tried.  The  record  of  a  revision  will  properly  begin  with 
setting  forth  a  copy  of  the  order  reconvening  the  court,  and  will  show  that 
at  least  live  members  assembled,  together  with  the  judge-advocate  and, 
where  the  correction  required  is  such  as  to  make  it  proper  that  he  be  present, 
the  accused.  The  record  will  further  show  the  action  taken  by  the  court, 
in  making  the  correction  or  otherwise,  under  the  order,  and  the  proceeding 
will  be  finally  authenticated  by  the  signatures  of  the  president  and  the 
judge-advocate.  Where  the  court  decides  upon  making  the  correction,  the 
same  should  be  declared  to  be  made  in  manner  and  form  as  determined  upon, 
and  with  the  proper  reference  to  the  part  of  the  original  proceedings  in 
which  the  error  occurs.  The  error  itself,  however,  is  to  be  left  as  originally 
recorded;  all  corrections  in  the  body  of  the  record  by  erasure,  interlineation, 


accused,  and  the  court  by  which  he  was  tried,  with  the  time  aud  place  of  trial,  etc.,  will  be 
apparent  wUliout  opening  aud  examining  tlie  proceedings.*  Dig.  J.  A.  Gen.,  G46,  par.  f. 
However  desirable  it  may  have  been,  in  view  of  tlie  numerous  and  serious  defects 
frequently  occurring  in  the  records  of  courts-martial  during  the  late  war,  aud  iu  order  to 
induce  a  greater  precision  and  unifornniy  in  the  preparation  of  such  records,  to  Irent  (as 
was  not  uiifrequently  done)  the  more  grave  of  Miese  defects  as  fatal  to  the  validity  of  the 
proceedings  or  sentence,  it  is  conceived  that  the  same,  in  general,  might  properly  liave 
been  regarded,  and  may  now  be  regarded,  as  only  calling  for,  or  justifying,  a  disapproval 
of  tlie  proceedings.  It  is  the  effect  of  the  rulings  of  the  civil  courts  that  wiiere  the 
court  on  any  trial  was  legally  constituted,  had  jurisdiction  of  the  ca.se,  and  has  impo.sed 
a  legal  sentence  or  judgment,  every  reasonable  inteiulment  will  he  made  in  favor  of  tlie 
regularity  of  its  proceedings,  and  even  where  tlie  same  aie  clearly  irreguhir  the  validity 
of  the  result  will  not  be  deemed  to  be  affected,  provided  no  statutory  provision  has  beeu 
violated.  (See  Hutton  vs.  Blaine,  2  Sergt.  &Rawle,  75,  79;  Moore  vs.  Houston,  3/r/.  197; 
Trinity  Church  vs.  Higgins,  4  Hobt.,  1;  Edwards  »s.  State.  47  Miss.,  581.)  And  it  is  further 
held  that  the  regularity  or  validity  of  the  minor  details  of  the  proceedings  may  beshown 
by  evidence  outside  the  record.  Van  Deusen  vs.  Sweet,  51  N  York,  378.  Similarly,  it  is 
believed,  no  bmi.ssion  or  error  in  a  record  of  court-martial,  not  in  contravention  of 
express  statute,  should,  as  a  general  rule,  be  regarded  as  absolutely  invalidating  the 
proceedings  where  there  remains  enough  in  the  record  fairly  to  warrant  the  presump- 
tion that  the  legal  requirements  have  been  complied  wirh,  or  where  the  reviewing 
authority  can  supply  the  defect  from  his  own  otflcial  knowledge,  or  from  current  orders 
or  otbersitlisfactory  evidence  readily  available  to  him.  Thus  where  no  copy  of  the 
convening  order  accompaincs  the  proceedings,  but  the  reviewing  authority,  from  the 
fact  of  having  i.ssued  it  himself  or  from  the  records  of  the  command  or  otherwise,  is 
officially  appri.sed  that  the  court  was  duly  convened,  the  proceedings  are  not  to  be 
treated  as  fatally  defective,  but — the  court  appearing  in  fact  to  have  been  constituted 
and  to  have  acted  pursuant  to  the  order— may  be  regarded  as  valid  in  law  though 
imperfectly  recorded.  Where  indeed  the  record  discloses  in  th(!  proceedings  of  a 
general  court-martial  an  irrcm('diable  defect  in  a  vital  particular,  as  the  fact  that  the 
court  was  composc^d  of  but  four  nuiinbers,  the  proceedings  and  sentence,  if  any,  must 
be  held  inoperative,  since  the  statute  law — Article  75— has  taxed  five  members  as  the 
legal  minrnvm  for  such  a  court.  But  where  the  defect  occurs  in  a  less  material  feature 
or  is  one  of  form  otdy,  the  same,  while  it  may,  if  of  a  grave  character,  properly  warrant 
a  (i?s«p7)ri?uaZ  of  the  proceedings. — in  case  it-  cannot  be  removed  by  a  revision  by  the 
court  on  being  reassembled  for  the  purpose,  -will  not  in  general,  it  is  held,  justify  the 
reviewing  authority  in  pronouncing  the  proceedings  to  be  void,  or  in  treating  them  as 
necessarily  without  legal  effect. 

*  See  G.  O.  ^.'9.  War  Dept..  1871.  prepared  l)y  the  .ludere- Advocate  General  and  oontaininf;  a  form  of 
indorsement  for  the  entitliiiK  of  records  of  courts  martial,  similar  to  that  prescribed  by  Maj.-Gen. 
Scott  in  G.  O.  50,  Hdqrs.  of  Army,  1851. 


rilE  RECORD.  197 

etc.,  being  irregular  and  improper,  A  court-martial  is  not  authorized, 
either  at  a  revision  or  during  the  trial,  to  expunge  bodily  any  material 
words  or  statement  forming  a  part  of  its  record.' 

Loss  of  Record. — Where  the  proceedings  of  a  court-martial  have  regu- 
larly terminated,  and  the  sentence  has  been  confirmed  and  ordered  to  be 
executed  by  the  proper  and  final  reviewing  authority,  the  fact  that  the 
record  has  since  been  lost  does  not  impair  or  affect  the  judgment  of  the 
court,  and  constitutes  no  legal  obstacle  to  the  enforcement  of  the  penalty. 
But  where  the  record  of  the  trial  of  a  soldier  who  liad  pleaded  not  guilty 
and  in  whose  case  considerable  evidence  had  been  introduced  was,  bv  a 
casualty  of  war,  lost  before  any  action  had  been  taken  upon  the  sentence  by 
the  reviewing  officer,  it  has  been  held  that,  unless  the  court  could  be 
reconvened  and  a  new  record  could  be  made  out  from  extant  original  notes, 
the  proceedings,  inasmuch  as  they  could  not  be  intelligently  reviewed  or 
formally  approved,  should  properly  be  considered  as  inoperative  and  the 
sentence  of  no  effect.' 

The  destruction,  by  fire  or  other  casualty,  of  the  record  of  the  trial, 
conviction,  and  sentence  of  a  deserter  before  action  could  be  taken  upon  the 
same  has  been  held  of  similar  effect  in  law  to  an  acquittal,  and  relieved 
the  deserter  from  the  forfeiture  of  pay  due  at  the  date  of  his  desertion.' 

DISPOSITIOX    OF    RECORDS. 

Disposition  of  Records  of  General  Courts-martial. — The  disposition  of 
the  records  of  general  courts-martial  is  regulated  by  Section  1199  of  the 
Revised  Statutes,  which  provides  that  "the  judge-advocate  general  shall 
receive,  revise,  and  cause  to  be  recorded  the  proceedings  of  all  courts- 
martial,  courts  of  inquiry,  and  military  commissions,  and  perform  such 
other  duties  as  have  been  performed  heretofore  by  the  judge-advocate 
general  of  the  Army."  ' 

Records  of  Minor  Courts. — The  Act  of  March  3,  1877,  contains  the 
requirement  that  the  records  of  regimental,  garrison,  and  field-officer's 
courts-martial  shall,  after  having  been  acted  upon,  be  retained  and  filed,  in 
the  judge-advocate's  office  at  the  headquarters  of  the  department  com- 
mander in  whose  department  the  courts  were  held,  for  two  years,  at  the 
end  of  which  time  they  may  be  destroyed.' 

Copies  of  Records  to  Accused  Persons. — The  114th  Article  of  War  con- 
tains the  requirement  that  "  every  party  tried  by  a  general   court-martial 

'  Dicj.  .J.  A.  Gen.,  646,  par.  1,  I.  A  record  ciinnot  lesjally  be  corrected  by  an  inter- 
lineation by  tlie  judge-ail  voiate.  as  by  tlie  words  "at  hard  labor  "  iuterliued  in  the  sen- 
tence. Nor  can  it  legally  be  corrected  by  a  statement  on  the  margin  of  a  page,  signed 
by  the  judge-advooite.  Ihid..  651,  par.  15.  See,  also,  the  title  Alterations  and  Erasure* 
in  the  chiqiler  entitled  Evidkn'ck. 

'  Ihid.,  648.  par.  4. 

^  Ihid..  6.51.  par.  17. 

♦Section  1199.  Revised  Statutes. 

*  Act  of  March  3,  1877  iV^  Stat,  at  Large.  310). 


198  MILITARY  LAW, 

shall,  upon  demand  thereof  made  by  himself  or  by  any  person  in  his  behalf, 
be  entitled  to  a  copy  of  the  proceedings  and  sentence  of  such  court."  ' 

The  right  thus  conferred  is  personal  to  the  accused  and,  as  it  ceases  to 
exist  at  his  death,  cannot  be  revived  or  exercised  by  or  in  behalf  of  his 
widow,  or  by  his  heirs  or  legal  representatives.  The  statute  confers  the 
right  in  the  case  of  the  proceedings  of  general  courts-martial  only;  it  does 
not  authorize  the  furnishing  of  copies  of  the  records  of  the  proceedings  of 
any  of  the  minor  courts-martial  or  of  courts  of  inquiry." 

'  114th  Article  of  War. 

«  Applications  for  copies  under  this  Article  may  be,  and  m  practice  commonly  are, 
addressed  in  the  tirst  instance  to  the  Judge-Advocate  General,  who  thereupon  furnishes 
the  copy  at  the  expense  of  the  United  States,  provided  the  application  is  made  by  the 
accused  or  in  his  behalf.  If  not,  he  can  furnish  the  copy  only  by  the  special  authority 
of  the  Secretary  of  War.  Any  person  desiring  a  copy  of  the  record  of  a  court-martial, 
or  of  any  portion  of  a  record,  who  is  not  entitled  to  be  furnished  with  the  same  by  the 
terms  of  this  Article,  should  apply  therefor  to  the  Secretary  of  W'ar,  stating  the  reason 
for  his  application,  in  order  that  it  may  appear  that  he  makes  the  same  in  good  faith 
and  for  a  proper  purpose.  If  the  application  is  approved  by  the  Secretary,  it  will  be 
referred  to  the  .ludge- Advocate  General,  who  will  tlien  have  the  copy  prepared  and 
transmitted.     Dig.  J.  A.  Gen.,  134,  par.  3. 

A  person  applying  for  the  copy  "in  behalf"  of  the  accused  should  exhibit  some 
satisfactory  evidence  that  he  duly  represents  the  accused,  as  his  agent,  attorney,  or  other- 
wise. Where  it  does  not  satisfactorily  appear  that  the  party  is  applying  for  and  on  be- 
half of  the  accused,  he  cannot  be  furnished  with  the  copy  as  of  right  under  the 
Article.  A  person  other  than  the  accused,  applying  on  his  own  account,  is  not  entitled 
to  the  copy.  The  fact  that  the  applicant  is  a  member  of  the  family  of  the  accused  does 
not  entitle  him  to  the  copy  in  the  absence  of  evidence  that  he  applies  at  the  instance  or 
in  behiilf  of  the  accused.  A  party  applying  in  behalf  of  "  friends  and  creditors  "  of  the 
accused  held  not  entitled  to  a  copy  of  the  record  of  his  trial.  So  held  of  one  who  sub- 
scribed his  application  merely  as  "  attorney  at  law,"  witliout  showing  that  he  was 
authorized  to  act  for  the  accused.     Ibid.,  par.  2. 

A  copy  of  the  proceedings  and  sentence  cannot  properly  be  furnished  under  this 
Article  till  the  same  have  been  linally  acted  upon  and  such  action  has  been  promulgated 
in  the  usual  manner.     Ibid.,  133,  par.  1. 

The  accused  or  other  person  entitled  under  this  Article  to  be  furnished  with  a  copy 
of  a  record  of  trial  is  not  entitled  to  be  furnished  with  a  copy  of  a  report  of  the  Judge- 
Advocate  General  made  upon  the  case.  To  receive  this,  special  authority  must  be 
obtained  from  the  Secretary  of  War.     Ibid.,  184,  par.  4. 

This  Article  does  not  authorize  the  furnishing  of  a  copy  of  the  record  of  trial  to  the 
widow  of  the  accu.sed  or  other  person  applying  after  his  decease.     Ibid.,  135,  par.  7. 

The  furnishing  of  a  cop)"-  of  a  record  of  a  general  court-martial  to  a  person  other 
than  the  accused  and  not  applying  in  his  behalf  will,  as  a  general  rule,  be  authorized 
by  the  Secretary  of  War  where  the  application  is  evidently  made  in  the  interest  of  jus- 
tice and  the  oopy  furnished  will  clearly  subserve  a  good  and  desirable  purpose.  But 
this  must  be  made  certainly  to  appear.     Ibid.,  par.  5. 

It  is  only  a  i)arty  "tried  by  a  general  court-martial  "  who  is  entitled  by  the  Article 
to  the  copy.  Parties  desiring  copies  of  records  of  courts  of  inquiry,  for  the  use  in  evi- 
dence und'er  Article  121  or  for  any  other  purpose,  must  apply  to  the  Secretay  of  War,  as 
above  indicated.  Sucii  copies,  however,  are  rarely  accorded,  except  for  use  under 
Article  121.     Ibid.,  par.  6. 


CHAPTER   XI. 
THE   REVIEWING   AUTHORITY. 

Power  to  Review,  in  "Whom  Vested. — This  term  is  employed  in  military 
parlance  '  to  designate  the  officer  whose  province  and  duty  it  is  to  take 
action  upon — approve  or  disapprove,  etc. — the  proceedings  of  a  court- 
martial  after  the  same  are  terminated  and  the  record  has  been  transmitted 
to  him  for  such  action.  This  officer  is  ordinarily  the  commander  who  has 
convened  the  court.  In  his  absence,  however,  or  where  the  command  has 
been  otherwise  changed,  his  successor  in  command,  or,  in  the  language  of 
Articles  104  and  109,  "the  officer  commanding  for  the  time  being,"  is 
invested  with  the  same  authority  to  pass  upon  the  proceedings  and  order 
the  execution  of  the  sentence  in  a  case  of  conviction.' 

The  "officer  commanding  for  the  time  being,"  indicated  in  this  Article, 
is  an  officer  who  has  permanently  or  temporarily  succeeded  to  the  command 
of  the  officer  who  convened  the  court;  as  where  the  latter  has  been  regu- 
larly relieved  and  another  officer  assigned  to  the  command,  or  where  the 
command  of  the  convening  officer  has  been  discontinued  and  merged  in  a 
larger  or  other  command,  at  some  time  before  the  proceedings  of  the  court 
are  completed  and  require  to  be  acted  upon.' 

To  legally  act  upon  the  proceedings,  however,  the  "  officer  command- 
ing for  the  time  being"  must  have  the  necessary  qualifications.  Thus 
where  the  sentence  is  one  of  a  general  court-martial,  this  officer  must  have 
the  same  rank  and  status  as  the  convening  officer  must  have  had  under  the 
7'2d  Article;  i.e.,  he  must  be  either  a  general  officer  commanding  the  army, 
division,  or  department,  or  a  colonel  commanding  the  department.* 

*  It  occurs  also  in  Sec.  1228,  Rev.  Sts. 
«Dig.  J.  A.  Gen.,  670,  par.  1. 

^  Ibid.,  127,  ptir.  5.  Thus  where,  under  tliese  circumstances,  a  separate  brigade  has 
ceased  to  e.xist  as  a  distiuclive  ori^anization  and  been  merged  iu  a  division,  or  a  divisi<m 
lias  been  similarly  merged  in  an  army  or  department,  the  commander  of  the  division  in 
the  one  case  anfl  of  the  army  or  department  in  the  other  is  "  the  officer  commanding  for 
the  time  being,"  in  the  sense  of  the  Article.  So  where,  before  the  proceedings  of  a  gar- 
rison court  convened  by  a  post  commander  were  completed,  the  post  command  had 
ceased  to  e.vist  and  the  command  become  distributed  in  the  department,  held  that  the 
department  commander,  as  liie  legal  successor  of  the  post  commander,  was  the  proper 
authority  to  approve  the  sentence  under  this  Article.     Ibid. 

*  Dig.  J.  A.  Gen.,  127,  par.  7.  Where  a  dep.irtment  command  was  discontinued 
without  being  transferred  to  or  included  in  any  other  specific  command,  held  that  the 
General  in  command  of  the  Army  was  "the  officer  commanding  for  the  time  being," 
and  the  proper  authority  to  act,  under  this  Article  and  the  109th,'  upon  the  proceedings 

199 


200  MILITARY  LAW. 

Approval  by  President. — In  cases,  liowever,  of  sentences  of  death  or 
dismissal,  imposed  in  time  of  peace,  and  of  some  death-sentences  adjudged 
in  time  of  war,  together  with  all  sentences  "  respecting  general  officers," 
while  the  convening  officer  (or  his  successor)  is  the  origimd  reviewing 
authoritv,  with  the  same  power  to  ajiprove  or  disapprove  as  in  other  cases,  yet, 
inasmuch  as  it  is  prescribed  by  Articles  105,  J  06,  108,  and  109  that  the 
sentence  shall  not  be  executed  without  the  confirmation  of  the  President, 
the  latter  becomes  in  these  cases  the  final  reviewing  officer,  and  the  sentence, 
having  been  approved  by  the  commander,  the  record  is  transmitted  to  him 
for  his  action.'  If,  however,  the  proceedings  or  sentence  are  disapproved  by 
the  original  reviewing  officer,  the  record  is  not  transmitted  to  the  President, 
as  there  is  nothing  left  in  such  case  for  the  action  of  higher  authority. 

A  similar  division  of  the  reviewing  function  exists  in  cases  in  which  sen- 
tences are  approved,  but  the  execution  of  the  same  is  suspended,  and  the 
question  of  their  execution  referred  to  the  President,  under  Article  111. 
The  same  function  is  also  shared  by  the  inferior  and  superior  commanders, 
in  cases  arising  under  Article  107,  in  which  sentences  are  imposed  by 
division  or  separate  brigade  courts.  So,  under  Article  110,  in  cases  of 
sentences  adjudged  by  field  officers'  courts  in  time  of  war.^ 

Wliere  a  general  court-martial  is  convened  directly  by  the  President  as 
Commander-in-chief,  he  is  of  course  both  the  original  and  final  reviewing 
authority." 

and  sentence  of  a  court  which  had  been  ordered  by  tbe  department  commander,  but 

whose  judgment  liad  not  been  compleled  at  the  time  of  the  discontinuance  of  the 
command.     Dig.  J.  A.  Gen  ,  127,  par.  6. 

Where  the  original  reviewing  officer  disapproves  a  sentence,  to  the  execution  of 
whicli  the  (confirmation  of  superior  autliority  is  made  requisite  by  die  code, — as  where  (in 
time  of  peace)  tlie  department  commander,  who  has  convened  the  court  in  the  <'ase  of 
an  officer,  disai)proves  a  sentence  of  dismissal  udjudged  thereby.— the  sentence  being 
nullified  in  law,  there  remains  nothing  for  the  superior  authority  to  act  upon,  and  to 
transmit  the  proceedings  to  him  for  aciicm  will  be  improper  and  unauthorized.  Ibid., 
G72,  par.  2. 

'  Ibid.,  670,  par.  1. 

5  Ibid. 

*  The  word  "approved"  employed  by  the  President  in  passing  upon  a  sentence 
of  dismi.ssal  held  to  be  substantially  equivalent  to  "(confirmed,"  the  word  used  in 
the  Article.  In  practice  the  two  words  are  u.sed  indifferently  in  this  connection. 
Ibid..  128,  par.  1. 

The  Article  does  not  require  that  the  confirmation  of  the  sentence  shall  be  signed  by 
the  President,  nor  does  it  prescribe  any  form  in  which  the  confirmation  shall  be  declared. 
Jfekl,  therefore,  that  a  written  approval  of  a  sentence  of  disnussal  authenticated  by  the 
signature  of  the  Secretary  of  War  or  expressed  to  be  by  his  order  was  a  sufficient  con- 
firmation within  the  Article  ;  the  case  being  deemed  to  be  governed  by  the  well- 
established  principle  that  where,  to  give  effe(;t  to  an  executive  proceeding,  the  personal 
signature  of  the  President  is  not  made  essential  by  law,  that  of  the  head  of  the  depart- 
ment to  which  the  subject  belongs  shall  be  sufficient  for  the  purpose  ;  the  assent  of  the 
President  to  his  order  or  direction  being  presumed,  and  his  act  being  deemed  in  law  the 
act  of  the  President  wliom  he  represents.*     [bid.,  par.  2. 

It  is  a  fundamental  general  principle  of  our  public  law  that  all  acts  done  by  and 

*  This  view  has  bft(»n  sustained  by  an  opinion  of  ttie  Attorney-General  of  June  6, 1877,  (15  Opin.<5.,  290.) 
ami  by  a  report  of  the  Judiciary  Committee  of  the  Senate  of  March  :i  1879,  report  No.  868,  Inrty-fiflli 
Coneress.  third  session.  (Froni  this  report,  indeeri.  two  members  of  the  committee  dissented  in  a 
subsequent  report  of  April  7,  1879,  Mis.  Doc.  No.  21,  Forty-sixth  Congress,  first  session.) 


THE  HKVIEWING  AUrilOlUTY.  201 

Effect  of  Approval  and  Disapproval. —  While  aj){)roval  gives:  life  and 
operation  to  proceedings  or  sentence,  disapproval,  on  the  other  hand,  quite 
Diillifies  the  same.'  A  disapproval  of  the  proceedings  of  a  court-martial  by 
the  legal  reviewing  authority  is  not  a  mere  expression  of  disapprobation,  but 
a  final  determinate  act  putting  an  end  to  such  proceedings  in  the  particular 
case,  and  rendering  them  entirely  nugatory  and  inoperative;  and  the  legal 
effect  of  a  disapproval  is  tlie  same  vehether  or  not  the  otiicer  disapproving  is 

(lirectioiis  emanating  from  the  heads  of  the  executive  departments  in  the  course  of  iheir 
ndmiiiistnitive  duties  are  in  law  tiie  acts  and  directions  of  the  President,  in  whom  is 
reposed  hv  the  Constitution  the  entire  executive  power  of  the  Government,  and  whom 
the  heads  of  departments  (except  wiiere  specially  invested  by  Contrre^s  witli  distinctive 
authority  of  their  own)  simply  act  for  and  represent.*  Tims  all  orders  made  and  issued 
by  the  Secretary  of  War  in  connection  with  the  government  and  regulation  of  tiie 
military  establishment— such  as  orders  convening  general  courts-martial,  or  approving  and 
directing  the  execution  of  tiie  sentences  or  otlierwise  acting  upon  the  proceedings  of  sucli 
courts, f  or  miiigating  or  wholly  or  partially  remitting  punishments  imposed  thereby; 
or  orders  summarily  dismissing  officers,  or  dropping  for  desertion,  retiring  or  accepting 
the  resignation  of,  officers;  or  orders  establishing  nulitary  reservations,  or  promulgating 
army  regulations,  etc, — are  to  be  regarded  as  the  orders  and  acts  of  the  President,  whom 
thi-  Secretary  of  War  represents  in  the  administration  of  Ins  depariment  ;  the  same 
being  presumed  to  be  made  and  issued  with  the  knowledge  and  by  the  direction  of  the 
President,  whether  or  not  he  be  referred  to  therein  as  having  directed  or  commanded 
the  same  ;  and  being  equally  as  valid  and  operative  as  if  signed  by  the  h;md  of  the 
President  himself.:}:     Dig.  J.  A.  Gen.,  689,  par.  1. 

This  subject  has  been  nu)re  recently  considered  bv  the  United  States  Supreme  Court 
in  a  succession  of  cases  (llunkle  vs  U.  S.,  122  U.  S.;  543;  U.  S.  vs.  Page.  137  U.  S.,  673: 
U.  S.  vs.  Fletclier,  148  U.  S.,  84),  the  effect  of  which  is  that  a  statement  of  approval  of 
a  sentence  of  dismissal  authenticated  by  the  Secretar}'  of  War  is  legally  sufficient, 
provided  that  it  appear,  by  clear  presumption  tlierefrom,  that  the  proceedings  have 
actually  been  submitted  to  the  President.     Jhid..  par.  2,  note. 

In  an  opinion  of  the  Attorney  General  of  April  1,  1879.  (10  Opins.,  298,)  it  was  held 
that  a  confirmation  of  a  sentence  of  dismissal  of  an  officer,  though  irregularly  and 
unduly  aullunlicated,  would  be  ratitied  by  an  ai)pointment  by  tin;  President  of  anoliier 
officer  to  till  the  supposed  vacancy,  and  that  the  appointment  thus  made  would  be  valid 
and  operative.     Ibid. 

'  'I'he  104tli  Article  is  properly  to  be  complied  with  by  an  approval  of  the  sentence 
(where  the  same  is  approved  in  fact)  by  "  the;  officer  ordering  the  court,"  etc.,  although, 
as  in  a  case  of  a  sentence  of  dismi.ssal  in  time  of  peace,  he  nuiy  not  be  empowered  tinally 
to  confirm  and  give  effect  to  the  sentence.  Ilis  jipjiroval  is  required  as  showing  that  he 
does  not,  as  he  is  authorized  to  do,  disapprove.     Dig.  J.  A.  Gen,,  126,  i>ar.  1. 

The  approval  of  the  sentence  indicated  by  this  Article  should  jiroperly  be  of  a  formal 
character.  An  itulorsement,  signed  by  the  commander,  of  the  single  word  "  Approved,"' 
— a  form  not  unfrequ  'lly  employed  during  the  late  war,  — thoui;h,  strictly,  sufficient  in 
law,  is  irregular  am  jjccliouable.  So  Ae^(/ that  a  mere  stntinient  written  in  or  upon 
the  pioceedings,  in  transmitting  them  to  the  President,  that  the  iccord  was  '  forwarded  " 
for  the  action  of  superior  authorit}-,  was  insufficient  as  not  implying  the  reciuisite  approval 
according  to  the  Article.  And  similarly /a  M  of  a  mere  recommendation  that  the  pro- 
ceedings be  approved  by  such  authorit)'.     Ibid..  2. 

Held  that  a  department  commander  while  absent  from  his  headquarters  on  an 
expedition  against  Indians  could  not  legally  dei)Ule  a  staff  or  other  officer  to  act  for  him, 
in  approving  the  sentences  of  courts-martial  previously  duly  couveued  by  him.  Ibid., 
par.  4. 


*  Lockington  vs.  Smith,  Peters  C.  C,  472;  U  S.  vs.  Benner.  1  Baldwin,  238;  Wilcox  vs.  Jackson.  13 
Peters,  498;  U  S.  vs.  Eliason,  16  id..  302  ;  The  Confiscation  Cases.  20  Wallace,  109  ;  U  S.  vs.  Welister, 
Paveis,  59;  U  S.  t's.  Freeman,  1  Wood.  &  SlinoT.  ."i| :  LoekinRtoii's  Ca.se,  Brightly.  2SS;  U.  S.  r.":.  Cutter, 
2  Curtis,  617;  Hiokev  vs.  Huse,  .^  Maine,  495  ;  McCalls  Case,  5  Philad.,  289  ;  In  Matter  of  SpanRler,  11 
Mich.,  322;  1  Opins.  Att.-Gen.,  380;  6  id.,  32C,  587,  682;  7  id.,  453.  725;  9  id.,  463,  465;  11  id.,  398;  13  id.,  5, 
14  id..  •4.")3. 

t  But  see  lOfilh  .\rllcle. 

X  See  Vl'ik'ox  (s  .lackson.  13  Peters.  498;  U.  S.  vs.  Eliason,  16  id,,  302;  Hickey  vs.  Huse,  56  Maine; 
495;  2  Opins.  .Ml.  (Jen,,  (-.7;  13  /(/.,  5;  14  id..  453;  15  id..  290,  463;  G,  O.  S.'),  W,  D.,  1850. 


202  MILITARY  LAW. 

authorized  finally  to  confirm  the  sentence."  But  to  be  thus  operative  a 
disapproval  should  be  express.'  The  effect  of  the  entire  disapproval  of  a 
conviction  or  sentence  is  not  merely  to  annul  the  same  as  such,  but  also  to 
prevent  the  accruing  of  any  disability,  forfeiture,  etc.,  which  would  have 
been  incidental  upon  an  approval.''  A  disapproval  of  a  conviction  of  a  par- 
ticular offense  also  operates  to  nullify  the  conviction  of  any  lesser  included 
offense  involved  in  the  conviction  of  the  specific  offense  charged.' 

Wliile  there  are  numerous  defects,  errors,  or  omissions  which  may  well 
be  deemed  sufficient  to  induce,  on  the  part  of  the  reviewing  authority,  a 
disapproval  of  the  proceedings  or  sentence  of  a  court-martial,  there  are 
comparatively  few  which  should  be  regarded  as  fatal  to  the  legal  validity  of 
the  same.  Where  the  court,  as  shown  by  its  authentic  record,  was  legally 
constituted  and  composed  and  had  jurisdiction  of  the  case,  and  its  sentence 
is  a  legal  one,  i.e.,  one  by  which  a  legal  punishment  is  adjudged  the  accused, 
a  defect  in  its  proceedings  which  does  not  amount  to  a  violation  of  or  a 
failure  to  comply  with  a  statutory  requirement  should  not  in  general  be 
regarded  as  affecting  the  validity  in  law  of  the  proceedings  or  sentence.* 

Power  of  Reviewing  Authority. — The  authority  of  a  military  com- 
mander as  reviewing  officer  is  limited  to  taking  action  upon  the  proceedings 
and  sentence  (if  any)  by  approving  or  disapproving  the  same,  wholly  or  in 
part,  and  directing  the  execution  of  the  sentence,  and  to  the  incidental 
function,  as  conferred  by  Article  112,  of  pardoning  or  mitigating  the  punish- 
ments which  have  been  approved  by  him.  Action  not  included  within  these 
powers  he  is  not  authorized  to  take.  Thus  he  cannot  himself  correct  the 
record  of  the  court  by  striking  out  any  part  of  the  finding  or  sentence,  or 
otherwise,  nor  can  he  in  general  change  the  order  in  which  different  penal- 
ties are  adjudged  by  the  court  to  be  suffered,  nor  can  he  add  to  the  punish- 
ment imposed  by  the  court  though  deemed  by  him  quite  inadequate  to  the 
offense.^ 

'  Dig.  .J.  A.  Gen.,  671,  par.  2. 

-  See  16  Opins.  Ait.-Geu.,  312,  where  it  is  remarked  that  it  is  not  a  legal  disapproval 
of  a  conviction  or  sentence  for  the  original  reviewing  officer,  in  forwarding  the  pro- 
ceedings for  the  action  of  superior  authority,  to  indorse  upon  the  same  an  opinion  to 
the  effect  tiial  the  finding  is  not  sustained  by  the  evidence. 

*  Dig.  J.  A.  Gen.,  671,  par.  2.  As  frequently  remarked  in  the  opinions  of  the  Judge- 
Advocate  General,  the  mere  aksence  of  an  approval  is  not  a  disapproval,  nor  can  a  mere 
reference  of  the  proceedings  to  a  superior  without  words  of  approval  operate  as  a  dis- 
approval of  the  proceedings  or  sentence.*     Ibid. 

A  reviewing  officer  cannot  disapprove  a  sentence  and  then  proceed  to  mitigate  or 
commute  the  punishment,  since,  upon  the  disapproval,  there  is  nothing  left  in  tlie  case 
upon  which  any  such  action  can  be  based.     Ibid. 

It  is  quite  immaterial  to  the  legal  effect  of  a  disapproval  whether  any  reasons  are 
given  therefor,  or  whether  the  reasons  given  are  well  founded  in  fact  or  sufficient  in 
law.     Ibid. 

*Dig.  J.  A.  Gen.,  334. 

'  Ibid.,  672.  par.  3. 


*  A  disapproval  of  a  sentence  by  the  proper  reviewing  authority  is  "  tantamount  to  an  acqoittai  by 
the  court."    1-3  Opins.  Att.-Gen.,  460. 


THR  lih-yjEn-iya  authohity.  203 

A  reviewing  ollicer,  however,  may  in  general  specify  the  reasons  for  the 
action  taken  by  him  without  transcending  his  autiiority.  Thus  where  a 
department  commander  disapproved  a  sentence  as  inadequate,  and  in  stating 
his  oTounds  for  so  doing  commented  unfavorably  upon  the  conduct  of  the 
accused  as  indicated  by  the  evidence,  it  has  been  held  that  such  comments 
were  a  legitimate  explanation  of  the  action  taken  and  did  not  constitute  an 
adding  to  tiie  punishment.' 

Where  the  re  'iewing  officer  deems  that  the  proceedings  of  the  court  are 
in  any  material  particular  erroneous  or  ill  advised,  his  proper  course  in 
general  will  be  to  reconvene  the  court  for  the  purpose  of  having  the  defect 
corrected,  at  the  same  time  furnishing  it  with  the  grounds  of  his  opinion. 
Thws  if  he  regards  the  sentence  inadequate,  he  should,  in  reassembling  tht» 
court  for  a  revision  of  the  same,  state  the  reasons  why  he  considers  it  to  be 
disproportionate  to  the  amount  of  criminality  involved  in  the  olfense.  But 
although  he  cannot  compel  the  court  to  adopt  his  views  in  regard  to  the 
supposed  defect,  he  may  in  a  proper  case  express  his  formal  disapprobation 
of  their  neglect  to  do  so.'' 

In  acting  upon  the  proceedings  of  a  court-martial,  the  legal  reviewing 
officer  acts  partly  in  a  judicial  and  partly  in  a  ministerial  capacity.  He 
"  decides  "  and  "  orders,"  and  the  due  exerciseof  his  proper  functions  cannot 
be  revised  by  superior  military  authority.  Thus  a  reviewing  officer  who 
has  duly  acted  upon  a  sentence  and  promulgated  his  action  in  orders  can- 
not be  required  by  a  higher  commander,  or  by  the  Secretary  of  War, 
to  revoke  such  action.  If  the  sentence  be  deemed  unwarranted  or  exces- 
sive, relief  may  be  extended  through  the  power  of  pardon  or  remission.' 

The  reviewing  autiiority  should  properly  authenticate  the  action  taken 
by  him  in  any  case  by  subscribing  in  his  own  hand  (adding  his  rank  and 
command,  as  indicating  his  legal  authority  to  act)  the  official  statement  of 
the  same  as  written  in  or  upon  the  record.  Impressing  the  signature  by 
means  of  a  stamp  is  not  favored.* 

'  Dig.  J.  A.  Gen.,  672.  par.  3.  In  passing  upon  the  findings  and  sentence  of  a  couit- 
ma!ti:il°the  reviewing  officer  will  properly  attach  special  weight  to  its  conclusions  where 
the  testimony  lias  been  of  a  conflicting  character.  This  for  the  reason  that,  having  the 
witnesses  before  it  in  person,  llie  court  was  qualified  to  judge,  from  their  maimer  in 
couneclion  wiih  tiieir  statements,  as  to  the  proper  measure  of  credibility  to  be  attached 
to  tlitin  individually.* 

'  Jhi'd..  (u'6.  par.  4.  Tlius  where  a  court-martial,  on  being  reconvened  with  a  view 
of  ffiving  it  an  oppovtimity  to  modify  a  sentence  manifestly  too  lenient  for  the  offense 
foimd,  ilecidid  to  adhere  to  the  sentence  as  adjudged,  and,  on  being  again  reassembled 
to  consider  further  groimds  jiresented  by  the  reviewing  commaiuier  for  tlie  iiitliction  of 
a  severer  penalty,  again  decliiu'd  to  increase  the  punishment,  field  that  it  was  within 
the  authority  of  the  reviewing  ofiicer,  and  would  be  no  more  tiian  proper  and  dignified 
for  him  in  taking  final  action  upon  the  case,  to  reflect  upon  the  refusal  of  the  court  as 
ill-jud<red,  and  as  having  the  effect  to  impair  the  discipline  and  prejudice  the  interests 
of  the  military  service.     Ibid.     See,  also,  the  title  Proceedings  in  Jievision,  p.  159,  ante. 

»  Dig.  J.  A.  Gen.,  676,  par.  17. 

*  Ibid. .  674.  par.  6. 

*  See  tlip  early  case  of  Capt.  Weisner,  Am  Arcliiv.,  5th  Series,  vol.  ii.  p.  895.  So  civil  courts  will 
rarely  interfere,  except  in  cases  of  clear  injustice,  with  verdicts  of  juries  which  have  turned  upon  the 
credibility  of  witnesses.    Wright  vs.  State.  31  Ga.,  110  ;  Whitteu  vi.  State,  47  id.,  -,'97. 


204  MILIIARY  LAW. 

A  military  commander  cannot  of  course  delegate  to  an  inferior  or  other 
officer  his  function  as  reviewing  authority  of  proceedings  or  sentences  of 
courts-martial  as  conferred  by  the  104th  or  109th  Article  of  War  or  other 
statute.  Xor  can  he  regularly  authorize  a  staff  or  other  officer  to  write  and 
subscribe  for  him  the  action,  by  way  of  approval,  disapproval,  etc.,  which 
he  has  decided  to  take  upon  such  proceedings.' 

"When  the  final  action  of  the  reviewing  officer  has  been  published  in 
orders  to  the  command  and  notified  to  the  accused,  his  power  of  approval 
and  disapproval  in  the  case  is  exhausted  and  his  action  cannot  be  recalled  or 
modified.' 

THE   PARDONING   POWER. 
REMISSION,     MITIGATION,    AND    COMMUTATION. 

The  Pardoning  Power. — The  general  power  to  jjardon  offenses  against 
the  United  States  is  vested  by  the  Constitution  in  the  President.  As  an 
incident  of  his  power  to  pardon,  the  Executive  may,  by  a  similar  exercise  of 
clemency,  mitigate  and,  in  cases  in  which  from  the  nature  of  the  punisliment 
imposed  mitigation,  as  such,  is  impossible,  his  clemency  may  take  a  form 
presently  to  be  described,  called  commutation.  In  addition  to  the  power 
vested  in  the  President  by  the  Constitution,  a  qualified  form  of  the  pardou- 

'  Dig.  .T.  A.  Gen.,  674,  par.  7.  An  approval  purporting  to  be  subscribed  by  tbe  com- 
naander  "  by  "  his  staff  judge -advocate  or  assistant  adjutant-general  would  be  open  to 
question  and  quite  irregular  ;  as  would  also  be  any  action  subscribed  l)y  such  an  officer 
purporting  to  be  taken  "  in  the  absence  and  by  the  direction  of"  the  commander.    Ibid. 

'^  Ibid.,  675,  par.  13.  Where  a  department  commander  applied  to  the  War  Depart- 
ment for  the  return  of  tlie  proceedings  of  a  case  in  order  that  he  might  modify  his 
action  thereon,  held  that,  as  tlie  same  had  been  formally  promulgated  in  orders  and  had 
duly  taken  effect,  tlie  power  of  the  reviewing  officer  over  the  case  was  exhausted,  and 
the  application  could  not  legally  be  complied  with.     Ibid. 

Action  taken  by  a  reviewing  officer  upon  the  proceedings  and  sentence  of  a  court- 
martial  may  be  recalled  and  modified  before  it  is  published  and  the  party  to  be  affected 
is  duly  notified  of  the  same.  After  such  notice  the  action  is  beyond  recall.  The  power 
of  remission  indeed  may  be  exercised  so  long  as  any  part  of  the  punishment  imposed 
remains  unexecuted.  But  when  the  final  approval  of  the  sentence  (or  other  action 
taken)  has  been  once  officially  communicated  to  the  accused,  the  function  and  authority 
of  tlie  reviewing  officer,  as  such,  over  and  respecting  the  same  is  exhausted  and  cannot 
be  revived.  An  approval  cannot  then  be  substituted  for  a  disapproval,  or  vice  versa. 
Ibid.,  674,  par.  8. 

A  sentence  to  forfeit  certain  pay  was  approved,  and  such  approval  promulgated  in 
orders  of  Feb.  18,  1865.  On  March  10th  following,  the  reviewing  officer  "recon- 
sidered "  his  action  and  by  another  order  disapproved  the  sentence,  and  this  order  was 
also  i)romulgated.  Held  that  the  latter  order  was  of  no  effect.  The  first  order  executed 
the  forfeiture,  making  the  amount  forfeited  pul)lic  money,  and  exhausted  the  power  of 
the  reviewing  authority.     Ibid.,  676.  par.  14. 

But  where,  after  tiie  reviewing  conmiander  had  approved  a  sentence  in  General 
Orders  and  the  court  had  been  dissolved,  it  was  discovered  that  there  was  a  fatal  difect 
iu  the  proceedings  in  that  tliey  did  not  show  tiiat  the  court  or  judge-advocate  had  been 
sworn  in  the  case,  lield  that  the  commander  would  properly  issue  a  supplemental  order 
declaring  the  proceedings  a  nullity  and  the  original  order  inoperative  and  withdrawn  on 
accoimt  of  the  defect.     Ibid.,  par.  15. 

Where  the  convening  commander  dissolves  a  court  pending  a  trial,  his  power  as  to 
that  court  is  exhausted  and  he  cannot  revive  it  as  such.  He  may  reconvene  the  same 
members  Jis  a  court-martial,  but  it  will  be  another  and  distinct  tribunal.     Ibid.,  par.  16. 


Til!-:  Ki:  VIEW  IXC  MTH)rjrY.  205 

ini?  power,  extending  to  the  remission  or  mitigation  of  sentences  imposed  by 
tlie  several  military  tribunals,  is  conferred  by  statute  upon  certain  military 
commanders  who  are  authorized  by  law  to  approve  and  carry  into  effect 
the  sentences  of  courts-martial.' 

The  President  is  empowered  by  the  Constitution '"  to  grant  pardons 
for  offenses  against  the  United  States  ";  and  a  pardon,  like  a  deed,  in  order 
to  take  effect  must  be  delivered  to  and  accepted  by  the  party  to  wliom  it  is 
granted.'  Thus  there  can  be  no  pardon  of  a  deceased  officer  or  soldier;  and 
that  the  pardon  is  asked  by  the  party's  widow  or  heir,  who  is  to  be  pecuni- 
arily benelitod  thereby,  cannot  affect  the  principle.* 

Effects  of  Pardon. — It  is  the  effect  of  the  exercise  of  the  pardoning 
power  by  the  President  to  relieve  the  party  from  all  punishment  remaining 
to  be  suffered.  Where,  therefore,  he  remits  the  unexecuted  portion  of  a 
term  of  imprisonment,  an  additional  penalty  which,  by  the  express  terms  of 
the  sentence,  was  to  be  incurred  at  the  end  of  the  adjudged  term,  as  a  dis- 


'  The  piirdon  or  remissiouof  the  uuexpired  punishments  of  soldiers,  where  favored  by 
the  Judge-Advoetite  General,  has  been  recoiuniendeii  on  grounds  of  which  the  principal 
were  the  following  :  that  the  soldier  was  a  minor  at  enlistment  ;  that  he  was  enlisted 
under  false  representations  as  to  the  kind  of  service  which  would  be  required  of  him, 
made  by  the  recruiting  officer  in  disregard  of  pur.  91(),  Army  Regulations  ;  that  lie  en- 
listed as  a  mere  recruit,  did  not  have  the  Articles  of  War  read  to  liiin,  :ind  hud  no  proper 
comprehension  of  the  gravity  of  his  oll'ense  ;  that  he  did  not  comprehend  his  military 
obligations  on  account  of  an  imperfect  knowledge  of  the  English  language  ;  that  he 
was  un  Indian  scout  unacquainted  with  our  language  or  with  the  Articles  of  War  ;  that 
his  olfense  was  wholly  or  in  part  induced  by  harsh  or  injudicious  treatment  by  a  military 
superior  ;  that  excessive  or  unreasonable  duty  hud  been  required  of  him.  or  that  he  had 
been  put  on  duty  (as  a  guard  or  sentinel,  for  example)  when  until  for  the  same  on 
account  of  illness  or  partial  intoxication  ;  that  his  offense  was  committed  under  a  provo- 
cation, or  was  accompanied  by  circumstances  of  extenuation,  to  which  the  court  had 
not  given  due  weight  ;  that  prior  to  his  trial  and  sentence  he  had  been  adequately  dis- 
ciplined by  his  commander  ;  that  he  had  been  improperly  hi  Id  in  irons,  or  handcuffed, 
pending  the  trial  :  that  his  confinement  had  so  seriously  impaired  his  health  that  if  con- 
tinued it  would  endanger  his  life  ;  that  an  unreasonable  time  was  allowed  to  elapse 
between  his  arrest  and  trial,  or  after  trial  and  before  the  approval  and  promulgation  of 
the  sentence.  These  and  other  grounds  have  been  taken  into  consideration,  sometimes 
alone,  and  sometimes  in  combination  or  in  connection  with  such  further  favorable  cir- 
cumstances as  volunt.iry  return  in  case  of  desertion,  previous  good  character,  good 
conduct  under  sentence  etc.  In  cases  of  officers,  the  principal  grounds  for  recom- 
mending pardon  or  remission  have  been  a  previous  good  record  for  etiiciency  in  the 
service,  especially  in  time  of  war,  a  high  personal  character  or  reputation,  and  an  appar- 
ent absence  of  a  fraudulent  or  criminal  intent  in  the  offense  as  committed.  Dig.  .J.  A. 
Gen.,  554,  par.  11. 

In  cases  in  which  military  offenders — such  as  deserters  from  the  army  remaining  at 
larire,  or  officers  or  soldiers  who  have  escaped  from  military  custody  while  in  arrest  or 
under  sentence^ — have  applied  from  their  places  of  refuge  for  executive  pardons,  it  has 
almo.st  invariably  been  advwd  by  the  .Tudge-Advocate  General  that  the  application  be 
not  entertained  fill  the  fugitive  from  justice  should  return  and  surrender  himself  to  the 
militarv  authorities  to  stand  his  trial  or  abide  bv  his  sentence.     Ibid.,  555,  par.  12. 

-  Ariicle  II,  Sec.  3,  clause  1. 

»  U.  S.  vs.  Wilson,  7  Pet.,  150;  In  the  Matter  of  De  Puy.  3  Benedict,  307  :  6  Opin. 
Att.Gen.,  40:^. 

*  Dig.  J.  A.  Gen.,  551,  par.  1.  So  where,  in  a  ca=e  of  an  officer  who  had  died  while 
under  a  sentence  of  suspension  from  rank,  a  pardon  was  asked  for  the  purpose  of 
having  the  stigma  removed  from  his  record  in  the  service,  held  that  the  case  was  not 
one  in  which  the  pardoning  power  could  be  exercised.     Ibid. 


206  MILITARY   LAW. 

honorable  discharge  from  the  service,  cannot  be  enforced.  The  pardon 
having  intervened,  the  sentence  ceases  to  liave  any  effect  whatever  in  hiw, 
and  the  soldier — the  remainder  of  his  service  being  regular — must  be 
honorably  discharged.'  It  is  the  effect  of  a  full  pardon,  therefore,  (other- 
wise of  a  mere  remission  of  the  punishment — see  Remissiox)  to  remove  all 
penal  consequences,  except  of  course  executed  penalties  and  all  disabilities 
attached  hy  statute  or  army  regulation  to  the  offense  or  to  the  conviction 
or  sentence.'' 

Continuing  Punishments. — The  pardoning  power  extends  to  continuing 
punishments,  or  punishments  which  are  never  fully  executed, — remitting  in 
each  case  the  punishment  from  and  after  the  taking  effect  of  the  pardon. 
Of  this  class  is  the  punishment  of  disqualification  to  hold  military  or  public 
office,  as  also  that  of  the  losing  of  or  reduction  in  "  files  "  (or  relative  rank) 
in  the  list  of  officers  of  the  offender's  grade;  these,  being  continuing  punish- 
ments, may  be  put  an  end  to  at  any  time  by  a  remission  by  the  pardoning 
power.' 

Conditional  Pardons. — It  is  settled  that  a  pardon  may  be  conditional — 
may  be  granted  upon  a  condition  precedent  or  subsequent.*     Thus  where 

'  Dig.  J.  A.  Gen.,  553,  par.  5. 

-  Ibid..  551,  pur.  2.  Thus  the  pardon  of  a  convicted  deserter  will  relieve  him  from 
the  los.s  of  the  riglits  of  citizenship  attached  by  the  Act  of  Marcli  3,  1865,  (Sees.  1996, 
1998.  Rev.  Sis.,)  to  a  conviction  of  desertion.*  But  a  pardon  by  the  Presdeut  will  be 
ineffectual  of  course  to  remove  a  disqualification  incurred  by  the  offender  under  a  State 

Ibid.,  12  Opins.  At.  Gen.  81  ;  Ex  parte  Garland,  4  Wallace,  880. 

^  Dig.  J.  A.  Gen.,  553,  par.  6  ;  13  Opin.  Att.-Gen.,  547.  A  pardon  by  the  President 
will  reach  and  remove  a  continuinci:  disqualitication  or  di-sahility  incident  upon  the  com- 
mission of  an  offense  against  the  United  States,  or  upon  a  conviction  liy  a  United  States 
court  or  a  court-martial,  but  not  a  disqualification  incurred  (as  upon  conviction  of  grand 
larceny)  under  tJie  laws  of  a  State.     Ibid.,  557,  par.  17. 

*  The  lansruage  of  the  constitution  is  such  that  the  power  of  the  President  to  pardon 
conditionally  is  not  one  of  inference,  but  is  conferred  in  terms,  tlie  language  being  "to 
grant  reprieves  and  pardons,"  which  includes  absolute  us  well  as  conditional  pardons. 
Under  this  power  the  President  can  grant  a  conditional  pardon  to  a  person  under  sen- 
tence of  death,  offering  to  commute  that  punishment  into  an  imprisonment  for  life.  If 
this  is  accepted  by  the  convict,  he  has  no  right  to  contend  that  the  pardon  is  absolute 
and  the  condition  of  it  void.  Ex  parte  Wells,  18  How..  307;  Osborn  vs.  U.  S.,  91  U.  S., 
474;  U  S.  w.  Wilson,  7  Pet..  150.  When  a  pardon  is  granted  with  conditions  annexed, 
the  conditions  must  be  performed  before  tiie  pardon  is  of  any  effect.  Waring  vs.  U.  S., 
7  C.  Cls.  R  .  501.  One  who  claims  the  benefit  of  a  pardon  must  be  held  to  strict  com- 
pliance with  its  conditions.  Haym  vs.  U.  S.,  7  C.  Chs.  R.,  443;  Scott  vs.  U.  S.,  8  ibid., 
457.  The  condition  annexed  to  a  pardon  must  not  be  impossible,  unusual,  or  illegal; 
but  it  may,  with  the  consent  of  the  prisoner,  be  any  punishment  recognized  by  the 
st-.itutes,  or  bv  the  common  law  as  enforced  by  the  State.     Lee  vs.  Murphy,  22  Grat. 

(Va. ),  789. 

The  President  may,  also,  by  an  exercise  of  the  pardoning  power,  mitigate  or  com- 
mute a  punishment  impo.sed  by  any  court  of  the  United  States.  Ex  parte  Wells,  18 
How.,  307;  7n  re  Ross,  140  U,  S.,  453.  In  mitigating  tlie  sentence  of  a  naval  court- 
martial,  the  President  may  substitute  a  suspension  for  a  term  of  years  without  pay  for 
an  absolute  dismissal  from  the  service,  as  suspension  is  but  an  inferior  degree  of  the 
same  punishment.     1  Opin.  Att.-Gen,,  433. 

*  S  Opins.  Att.-Gen.,  284  :  9  id..  478:  14  id..  124.  And  see  People  vn.  Bowen.  43  Cal.,  439.  That  this 
disability  can  attach  only  upon  a  conviction,  see  the  47th  Article  in  the  Chapter  entitled  Thk  Articles 
OF  War,  ami  authorities  cited  in  note. 

t  7  Opins.  Att.-Gen.,  760. 


TiiK  liEviEWiyG  AUTiiouiry.  207 

the  President,  by  liis  proclumation  of  ]\Iarcli  11,  18G5,  granted  a  pardon  to 
all  deserters  "  on  condition  that  "  they  duly  returned  (within  a  certain  time 
stated)  to  their  regiments,  etc.,  and  served  the  remainder  of  their  original 
terms,  and  in  addition  a  period  equal  to  the  time  lost  by  desertion,  held 
that  a  soldier  who  duly  returned  under  this  proclamation,  but,  after  remain- 
ing with  his  regiment  a  portion  of  the  period  indicated,  abandoned  the  ser- 
vice and  went  to  liis  home,  was  liable  (the  legal  period  of  limitation  fixed  by 
the  lOod  Article  of  War  not  having  expired)  to  be  brought  to  trial  for  his 
original  desertion ;  the  condition  subsequent  upon  which  his  pardon  for  the 
same  had  been  extended  not  having  been  performed.' 

Constructive  Pardons. — While  to  restore  to  or  place  upon  duty  an  officer 
or  soldier  when  under  arrest  or  charges  on  account  of  an  alleged  offense 
would  not  probably  in  this  country,  to  the  same  extent  as  in  England,  be 
regarded  as  operating  as  a  condonation  of  the  offense,  the  promotion  of 
an  officer  while  under  arrest  on  charges  has  been  viewed  as  a  constructive 
pardon  of  the  offense  or  offenses  on  account  of  which  he  has  been  arrested. 
But  it  has  been  held  that  such  a  promotion  could  not  operate  as  a  pardon  of 
other  offenses  committed  by  him,  of  the  commision  of  which  no  knowledge 
was  had  by  the  Executive  at  the  date  of  the  promotion.' 

Pardon  not  Retroactive. — A  pardon  is  not  retroactive.  It  cannot  remit 
an  executed  punishment,  or  restore  an  executed  forfeiture  resulting  either 
by  operation  of  law  or  sentence.  It  cannot,  therefore,  restore  the  forfeitures 
incident  ujjon  desertion.  Further,  it  cannot  modify  past  history,  or  reverse 
or  alter  the  facts  of  a  completed  record.  From  and  after  the  taking  effect 
of  a  pardon  the  recipient  is  innocent  in  law  as  to  any  subsequent  contingen- 
cies, but  the  pardon  does  not  annihilate  the  fact  that  he  was  guility  of  the 
offense.     The  pardon  indeed  proceeds  upon  the  theory  that  the  party  was 

'  Dig.  J.  A.  Gen.,  554.  par.  9.  Held  that  a  withdrawal  bj-  a  department  commander 
of  a  pending  diarge  against  a  soldier,  upon  his  giving  a  pledge  to  abstain  in  the  future 
from  the  conduct  whieh  was  the  subject  of  the  charge,  did  not  operate  as  a  pardon  and 
could  not  be  pleaded  as  such.  Had  it  been  done  by  an  order  of  the  President,  it  could 
liave  had  no  further  operation  than  as  a  g?/rtSi'-conditional  pardon,  leaving  the  charge 
legally  renewable  upon  a  repetition  of  the  offense.     Ihid.,  557,  ]iar.  18. 

'^  ibid.,  553,  par.  7.  See  Clode,  Mil.  Forces  of  the  Crown,  vol.  i.,  p.  173  ;  Prendergast. 
244-5,  in  connection  with  the  cases  cited  of  Sir  Walter  Raleigh,  Lord  Lucau.  Capt. 
Achison,  etc. 

Held  that  an  order,  issued  by  competent  authority  at  about  the  close  of  the  war 
(December,  1865),  by  which  a  military  prisoner  convicted  of  larcenv  bv  court-martial 
was  simply  released,  before  the  end  of  his  term,  from  a  State  penitentiar)",  was  an  act  of 
constructive  pardon,  operating  to  remit  tlie  une.xecutcd  portion  of  the  sentence;  and  tliat 
a  formal  pardon  by  the  President  was  not  essential  to  enable  the  party  to  exercise  tlie 
right  of  suffrage  in  a  State  where  a  conviction  of  larceny,  unpardoned,  was  a  disqualifi- 
cation.    Dig.  J.  A.  Gen  ,  557,  par.  19. 

While  ordering  or  authorizing  an  officer  or  soldier  when  under  sentence  to  exercise 
a  command  or  perform  any  other  duty  incon.'iistent  with  tlie  continued  e.xeculion  of  his 
sentence  has  been  viewed  as  a  constructive  pardon,  held  tliat  to  allow  an  officer  while 
under  a  .sentence  of  suspension  from  rank  to  perform  certain  slight  duties  in  ch  sini:  his 
accounts  with  the  United  States  could  not  be  legarded  as  having  any  such  effect  Die 
J.  A.  Gen.,  553,  par.  8  ;  6  Opin.  Att.-Gen.,  74.  ' 


2 OS  MILlTAUl   LAW. 

guilty  in  fact.  The  asking  for  it  is  an  admission  of  guilt,  and  the  granting 
of  it  is  a  recognition  of  the  fact  of  guilt.' 

Source  of  Power  to  Pardon,  Mitigate,  etc. — Tlie  power  to  remit  or 
mitigate  sentences  awarded  bv  military  tribunals  is  conferred,  in  express 
terms,  by  the  112th  Article  of  War,  which  provides  that  "  every  officer  who 
is  authorized  to  order  a  general  court-martial  shall  liave  power  to  pardon  or 
mitigate  any  punishment  adjudged  by  it  except  the  punishment  of  death  or 
of  dismissal  of  an  officer.  Every  officer  commanding  a  regiment  or  garrison 
in  whicli  a  regimental  or  garrison  court-martial  may  be  held  shall  have  power 
to  pardon  or  mitigate  any  punishment  which  such  court  may  adjudge.' 

Sentences  of  Death  and  Dismissal. — The  power  to  remit  or  conmiute  sen- 
tences of  death  and  dismissal  is  reserved  by  this  Article  for  the  President. 
A  military  commander  cannot  exercise  such  power  even  where,  in  time  of 
war,  he  is  authorized  to  approve  and  execute  the  sentence,  lie  may  then, 
however,  if  he  thinks  that  the  sentence  should  be  remitted  or  commuted, 
suspend  its  execution  pending  the  action  of  the  President,  to  whom  it  may 
be  submitted  with  a  recommendation  to  clemency  under  the  authority  con- 
ferred by  the  following  Article:  '  "  Any  officer  who  has  authority  to  carry 
into  execution  the  sentence  of  death  or  of  dismissal  of  an  officer  may  sus- 
pend the  same  until  the  pleasure  of  the  President  shall  be  known;  and  in 
such  case  he  shall  immediately  transmit  to  the  President  a  copy  of  the  order 
of  suspension,  together  with  a  copy  of  the  proceedings  of  the  court."  ' 

Remission. — The  reviewing  authority,  in  the  exercise  of  the  power  con- 
ferred u))on  him  by  the  112th  Article  of  War,  may  see  fit  to  refrain  from 
carrying  the  entire  sentence  into  effect,  or  may  relieve  the  accused  of  a  por- 
tion of  the  punishment  imposed  in  the  sentence;  he  is  then  said  to  act  by 

'  Thus  held  that  the  President  could  not  by  a  pardon  remove  the  charge  of  desertion 
from  the  record  of  a  former  soldier,  who  had  long  since  become  a  civilian  by  reason  of 
the  muster-out  and  non-existence  of  the  volunteer  army  to  which  he  had  belonged  in  the 
late  war  ;  and  that  the  effect  of  his  pardon  would  not  be  to  give  him  an  honorable  dis- 
charge. A  pardon  would  not  only  not  remove  a  charge  of  desertion,  but  would  in  fact 
coniirm  it,  and  constitute  an  additional  reason  for  retaining  it  on  the  record.  And  a 
party  cannot  by  an  executive  act  be  discharged  from  the  service  unless  he  is  in  the 
service.  Dig.  J  A.  Gen.,  5r,6,  par.  15.  See  Ex  parte  Garland,  4  Wallace,  333  ;  Knote 
vs.  U.  S..  95  U.  S..  153. 

Held  (.January,  1892)  that  it  was  beyond  the  power  of  Congress  to  undo  the  executed 
legal  judgnuMit  of  a  court-martial,  and  that  it  could  not,  therefore,  lawfully  authorize 
tlie  Presicfent  or  tiie  Secretary  of  War  to  pardon  or  remit  a  legal  sentence  of  such  a  court 
adjudged  in  ISfiO  and  long  since  duly  and  fidly  executed.     Ibid.,  557,  par.  16. 

■■'  See.  also,  for  a  similar  power  in  respect  to  the  sentences  of  summary  courts,  sec- 
tion 2  of  the  Act  of  July  27,  1892  (27  Stat,  at  Large,  277). 

'  Dig.  .J.  A.  Gen.,  129,  par.  1. 

•»  llith  Article  of  War.  An  officer  suspeiuling  the  execution  of  a  sentence  for  the 
action  of  the  President  under  this  Article  should  first  formally  approve  the  same.  Simply 
to  forward  the  juoceeillngs  staling  that  the  sentence  has  been  suspended  is  incomplete 
and  irregular.  If  the  commander  disapproves  the  sentence,  he  cannot  of  course  suspend 
and  transmit  under  this  Article,  since  there  remains  nothing  for  the  President  to  act 
upon.     Dig   .T.  A.  Gen.,  129.  par.  1. 

Where  a  case  is  snbmitKsd  to  the  President  for  his  action  under  this  Article,  he  may 
approve  or  disapprove  the  .sentence  in  whole  or  in  part,  and,  if  approving,  may  exercise 
th(-  power  of  remission  or  mitigation.     Ibid.,  par.  2. 


77/ A'   UEVlKWlSa    AiTlU)liITY.  209 

way  of  remission.  The  etfect  of  remission,  as  a  form  of  clemency,  is  to 
cancel  the  entire  sentence  where  a  single  form  of  punishment  has  been 
imposed,  or  a  portion  of  it  where  the  sentence  is  made  uj)  of  two  or  more 
distinct  punishments — forfeiture  of  pay  and  confinement,  for  example — • 
either  of  wliich   may  thus  be  abated  or  reduced  by  way  of  remission.' 

Mitigation. — The  reviewing  authority,  in  approving  the  punishment 
adjudged  by  the  court  and  ordering  its  enforcement,  is  authorized,  if  hft 
deenis  it  too  severe,  to  graduate  it  to  the  proper  measure  l)y  reducing  it  in 
(quantity  or  quality  without  changing  its  species:  this  is  initiyntion.  Im- 
prisonment, tine,  forfeiture  of  pay,  and  suspension  are  punishments  capable 
of  mitigation.  As  an  instance  of  a  mitigation  both  in  (juantity  and  quality, 
it  has  been  held  that  a  sentence  of  imprisonment  for  three  years  in  a  peni- 
tentiary was  mitigable  to  an  imprisonment  for  two  years  in  a  military  prison.' 

The  pardoning  power  here  given  is  not  limited  in  its  exercise  to  tlie 
moment  of  the  approving  of  the  sentence,  but  may  be  employed  tis  long  as 
there  remains  any  material  for  its  exercise.  Under  this  Article,  as  inter- 
preted by  the  usage  of  the  service,  a  department  (or  army)  commander  may 
remit  at  any  time,  in  his  discretion,  and  for  any  cause  deemed  by  him  to  be 
sufficient,  the  unexecuted  portion  of  the  sentence  of  any  soldier  confined 
within  his  command  under  a  sentence  imposed  by  a  court-martial  convened 
by  him  or  by  a  predecessor  in  tlie  command.^ 

A  punishment  cannot  be  pardoned  or  mitigated  under  this  Article  where 
it  has  been  once  duly  executed.  Where,  however,  a  sentence  has  been 
executed  only  in  part,  it  may  be  remitted  as  to  the  jiortion  remaining 
unexecuted.' 

'  Remission  is  a  partial  exercise  of  the  pardoning  power,  relieving  the  person  from  a 
punishment  or  the  unexecuteil  portion  of  a  punishment,  but  not  imidoning  the  offense  as 
such,  or  removing  the  disahiiities  or  penal  ronsequent-es  ailaching  thereto  or  to  the  con- 
viction. Dig.  J.  A.  Gen.,  617.  pjir.  1.  Compare  Perkins  r.s.  Stevens  24  Pick.,  277; 
Lee  vs.  Murphy.  22  Giat.,  799,  1  Bish.  Cr.  L.,  J^  763;  2  Opins.  Att.-Gen.,  829;  5  Id., 
588;  S  Id..  283-4. 

'Diir.  J    A.  Gen.,  131,  par.  r,. 

^Ihid..  130.  par.  4. 

*  Ibid.,  par  3.  A  military  commander  vested  with  the  power  of  pardon  or  mitigation 
under  this  Article  is  not  authorized  U>  delegate  the  same  to  an  inferior.  Thus  Jteld  tiiat 
a  department  commander  coidd  not  ieirally  autliori/.e  a  post  commanderto  remit  in  part, 
upon  good  beliavior,  the  piuiisiiment  of  a  soldier,  under  sentence  at  the  post  of  the  latter, 
who  liad  been  eonvii'ted  by  ji  iicneial  court  convened  ;uid  whose  proceedings  hiid  been 
acted  upon  by  the  former.     Ibid.,  par.  2. 

Helil  liiat  it  was  not  a  due  exercise  of  tiie  i>ower  given  by  this  Article,  but  irregulai 
and  tmauthorized,  for  a  post  commander  to  suspend  the  execution  of  the  sentence  of  a 
g.arrison  court  convened  'by  him,  during  good  beliavior  on  the  part  of  the  soldiers  sen- 
tenced. Ibid  ,  131,  par.  6.  Such  an  exerci.se  of  clemency  would  constitute  a  con- 
ditional pardon.  ;ui  exercise  of  power  vested  by  the  Constitution  in  the  President  alone. 
See  the  title  "  Commutation," /jo.v^ 

A  punishment  in  itself  illeiral  is  not  capable  of  mitigation.  Thus  where  a  sentence  of 
imprisonment  in  a  penilenliaiy  is  not  legally  authorize  1,  it  cannot  be  made  valid  by 
mitigating  this  iraprisonnieiU  to  continement  in  a  military  prison.  In  such  case  the 
latter  will  be  equally  invaliil  and  inoperative  wilii  tiie  original  pimishment.  Ibid.,  132. 
par.  11. 

A  substitution,  for  a  punishment  of  dishonorable  discharge  with  Ios3  of  all  pay  and 


210  .  MILITARY  LAW. 

Commutation. — As  an  exercise  of  the  joower  to  "  pardon  or  mitigate" 
the  sentences  of  courts-martial  operates  within  the  field  of  the  general  power 
to  pardon  which  is  vested  in  the  President  by  the  Constitution,  the  terms 
of  the  Article  conferring  this  authorit}'  upon  military  commanders  have 
been  strictly  construed ;  and  so  where  a  sentence  has  been  imposed  of  such 
character  as  not  to  admit  of  mitigation — death,  dismissal,  or  dishonorable 
discharge,  for  example — clemency  can  only  be  exercised  by  way  of  commu- 
tation; that  is,  by  the  substitution  of  another  and  different  punishment  for 
that  imposed  in  the  sentence.  Comnmtation,  therefore,  is  a  form  of  condi- 
tional pardon,"  a  power  vested  in  the  President  alone,  and  not  shared  with 
the  several  reviewing  authorities  mentioned  in  the  lUth  and  112th  Articles 
of  War.^ 


allowances  due  uud  to  become  due,  of  a  punishinent  of  coufinement  at  Laid  labor  at  the 
post  for  one  year  with  forfeiture  of  ten  dollars  per  month  for  the  same  period,  held  not 
a  legitimate  mitiH:alion.     Dig.  J.  A    Gen.,  133,  par.  12. 

Where  a  sentence  of  disiionorable  discharge  with  forfeiture  of  all  pay  and  allow- 
ances and  confinement  at  hard  labor  for  four  years  was  mitigated  to  confinement  for  one 
year  with  forfeiture  of  ten  dollars  per  mouth  "for  the  same  period,  held  that  the  same  ^yas 
regular  and   legal  and  not  in  coniraveuliou  of  Circ.  No.  2  (H.  Q.  A.),  of  1885.     Ihid., 

par.  13.  .  ,  , 

Dishonorable  discharge  cannot  legally  be  mitigated  to  "  discharge  without  a  charac- 
ter."    The  latter  is  not  a^recoguized'punishment.     Ihid.,  par.  14. 

"Where  a  sentence  con-isis  of  several  inmishments,  the  reviewing  officer  cannot  so 
exercise  the  power  of  mitigation  as  to  exceed  in  any  instance  the  maximum  punishment 
established  by  law  and  orders.  Thus  he  would  not  be  authorized  by  way  of  mitigation 
to  reduce  a  confinement,  while  at  the  same  time  adding  to  a  forfeiture  so  as  to  make 
it  in  excess  of  the  maximum  forfeiture  legally  allowable  for  the  offense.      Ibid.,  133, 

par.  19.  !■  .        '   i; 

An  officer  under  a  sentence  of  suspension  for  five  years  with  forfeiture  of  one 
quarter  of  his  pay  api)lied  to  be  allowed  lo  receive  his  full  pay  for  three  months,  the 
forfeiture  imi)osed  by  the  sentence  for  these  months  to  be  satisfied  in  one  sum  from  the 
pay  of  the  month  ucxt  succeeding.  Held  that  such  action— for  which  there  was  no 
precedent— would  have  to  be  taken,  if  at  all,  by  way  of  mitigation,  but  that  the  same 
would  amount  to  a  postponement  of  the  execution  (of  a  pari)  of  the  sentence,  which 
would  not  be  legitimate  mitigation.     Ihid.,  par  20. 

'  See  the  title  "Conditional  Pardons,"  supra. 

"^  Held  that  a  reviewinir  officer  other  than  the  President  was  not  empow-ered  by  this 
Article  to  commute  a  punishment;  that  the  "pardon"  here  specified  was  remission, 
whicli,  unlike  the  pardoning  powder  vested  in  the  President,  did  not  include  commiita- 
tion  or  conditional  pardon.  So  held  that  a  reviewing  commander  was  not  authorized 
to  commute  the  punishment  of  dishonorable  discharge,  and  that,  as  such  punishment 
was  not  susceptible  of  mitigation,  it  could  not  legally  be  reduced  under  this  Article. 
Dig.  J.  A.  Gen.,  131,  par.  7.  ,   ,.  ,  ^,      ,. 

The  substitution  of  the  punishment  of  confinement  for  that  of  dishonorable  dis- 
charcre,  iinpo.sed  by  sentence  of  court-martial,  would  not  of  course  be  authorized  by 
way'^of  mitigation  (which  cannot  change  tlie  nature  of  the  punishment),  but  may  be 
effected  by  a  commutation  of  the  sentence  by  the  President,  accepted  by  the  soldier. 
(See  the  action  of  the  President  in  the  ca.se  of  Private  Hayes,  5th  Artillery,  in  G.  C.  M. 
O.  58,  A.  G.  O.,  of  1888.)     Ihid.,  par.  8. 

Where  a  prisoner  is  serving  out  a  sentence  of  imprisonment  at  a  military  prison  or 
place  of  confinement  within  tiie  command  of  the  officer  wlio  approved  the  proceedings, 
such  officer  or  his  successor  in  command  may,  under  this  Article,  remit,  at  any  time, 
the  unexpired  portion  of  the  pending  confineinent,  although  the  punishment  of  dishon- 
orable discharge  imposed  by  the  same  sentence  may  meantime  have  been  duly  exe- 
cuted.*   Ihid.,  par.  9. 

*  Thf-  conntpr-opinion  of  th«*  AtrornpV-G''npraI  (10  Opiri.  Att.  Gen..  IOC)  was  not  adopted  by  the  Sec- 
retary of  War  or  followed  in  practic-e.'as  is  sliown  l.v  tlie  terin^  of  paragraphs  94a  and  946,  Army 
Regulations  of  189.i.    See,  also,  Manual  for  Courts-niartial,  p.  68,  par.  9,  and  notes. 


CHAPTER  XII. 

THE  INFERIOR  COURTS-MARTIAL, 

Jurisdiction  in  General. — The  constitution  and  composition  of  the  several 
inferior  courts  have  already  been  described.'  The  procedure  of  tlie  garrison 
court  and  of  the  regimental  court,  wlien  convened  for  tlie  trial  of  military 
offenses,  is  in  all  respects  similar  to  that  of  general  courts-martial.  That  of 
the  Summary  Court,  as  its  name  implies,  is  less  formal  in  its  nature  than  that 
of  courts  liaving  multiple  membership.  The  jurisdiction  of  these  courts  as 
a  class,  in  respect  to  persons  and  ofTenses,  and  their  power  to  punish,  which 
are  very  much  less  extensive  than  tliose  of  the  general  court,  will  now  be 
explained. 

The  jurisdiction  of  the  several  inferior  courts  is  regulated  by  the  83d 
Article  of  War,  which  provides  that  "  regimental  and  garrison  courts-martial 
and  summary  courts  detailed  under  existing  laws  to  try  enlisted  men  shall 
not  have  power  to  try  capital  cases  or  commissioned  officers,  but  shall  have 
power  to  award  punishment  not  to  exceed  confinement  at  hard  labor  for 
three  months,  or  forfeiture  of  three  montlis'  pay,  or  both ;  and  in  addition 
thereto,  in  the  case  of  non-commissioned  officers,  reduction  to  the  ranks,  and 
in  the  case  of  first-class  privates  reduction  to  second-class  privates." "  It 
will  thus  be  seen  that  two  classes  of  cases  are  expressly  withdrawn  from  their 
cognizance,  capital  cases  uiul  those  in  which  the  party  defendant  is  a  com- 
missioned officer.'  The  limitation  upon  the  power  of  the  inferior  courts  to 
punish  which  is  contained  in  the  same  Article  constitutes  an  additional 
restriction  upon  their  jurisdiction,  and  applies  not  only  to  cases  in  which 
the  death-penalty  may  be  imposed,  but  to  the  graver  offenses  as  well — such 
as  larcenies,  aggravated  acts  of  drunkenness,  protracted  absences  without 
leave,  and  the  like — the  proper  and  adequate  punishment  of  which  would 
be  beyond  the  power  of  such  tribunals  to  infiict.  For  this  reason,  therefore, 
as  a  reviewing  officer  is  never  authorized  to  add  to  tlie  punishment  imposed 
by  any  court-martial,  the  more  serious  offenses  should,  where  practicable, 
be  referred  for  trial  to  general  courts-martial,  which  alone  are  vested  with 

'  See  the  chapters,  ante,  entitled  respectively  The  Constitution  of  Courts  martial 
and  The  Composition  of  Coirts-maktial. 

*  Act  of  March  3,  1901.     (31  Stats,  at  Large,  951.) 

'  Capital  offenses,  i.e.,  offenses  capitally  punishable,  not  being  within  the  jurisdic- 
tion of  inferior  courts,  such  courts  cannot  take  cognizance  of  acts  specifically  made  pun- 
ishable bv  Article  31,  however  slight  be  the  offenses  actually  committed.  Dig.  J.  A. 
Gen.,  94.  par.  2. 

211 


212  MILITARY  LAW. 

jurisdiction  to  impose  pnnislinient  in  proportion  to  the  gravity  of  the 
offense.'  An  inferior  court,  liowever,  cannot  legally  decline  to  try  or  sen- 
tence an  offender,  being  an  enlisted  man,  on  the  ground  that  it  is  not 
empowered,  under  this  Article,  to  impose  a  punishment  adequate  to  his 
actual  offense.* 

The  statutes  and  the  Army  Regulations  also  confer  an  important  privi- 
lege in  this  respect  upon  cadets  and  upon  certain  enlisted  men  of  the  higher 
grades,  in  the  form  of  an  immunity  from  trial  by  inferior  courts,  unless 
such  trial  has  been  ordered  by  authority  of  the  officer  competent  to  order 
their  trial  by  a  general  court-martial.'  Enlisted  men  holding  certificates  of 
eligibility  for  promotion  are  exempted  from  such  trials,*  and  non-commis- 
sioned officers  "  if  they  object  thereto  shall  not  be  brought  to  trial  before 
Summary  Courts  without  tlie  authority  of  the  officer  competent  to  order 
their  trial  by  general  court-martial."  " 

THE    SUMMARY    COURT. 

Constitution  and  Composition. — The  constitution  and  composition  of  the 
Summary  Court  have  already  been  explained.  It  may  be  convened  "  by  the 
commanding  officer  of  each  garrison,  fort,  or  other  place,  regiment  or  corps, 
detached  battalion,  or  company,  or  other  detachment  of  the  Army."  '     The 

'  Dig.  J.  A.  Gen.,  95,  par.  7.     See,  also,  in  the  Manual  for  Courts-martial,  the  article 

entitled  "  Punishment." 

A  sentence  forfeiiing  pecuniary  allowances  in  addition  to  ])ay,  where  the  entire 
forfeiture  amounted  to  a  sum  greater  than  one  month's  pay,  held  not  authorized  under 
this  Article.     Ibid.,  par.  3. 

A  sentence,  adjudged  by  a  garrison  court,  of  jjpnfinement  "  till  the  expiration  of  the 
term  of  service  "  of  a  soldier  held  unauthorized  unless  the  soldier  had  no  more  than  one 
month  left  to  serve.      lbid..\Y.\r.A. 

The  limitation  of  the  authority  of  inferior  courts  in  regard  to  sentences  of  imprison- 
ment and  line  held  not  to  preclude  the  imposition  by  them  of  other  punishments  sanc- 
tioned by  the  usage  of  the  service  ;  such,  for  example,  as  reduction  to  the  ranks  either 
alone  or  in  connection  witli  those  or  one  of  those  ex!)ressly  mentioned.     Ibid.,  par.  5. 

The  limitations  imposed  by  the  Article  have  reference,  of  course,  to  .single  sentences. 
For  distinct  ollenses  made  the  subject  of  dilTerent  trials,  resulting  in  separate  sentences, 
a  soldier  may  be  placed  at  one  an(l  the  .same  time  under  several  penalties  of  forfeiture 
and  imprisonment,  or  eitlier,  exceeding  together  the  limit  attixed  by  the  Article  for  a 
single  sentence.     Ibid.,  par.  6. 

2  Ibid.,  9.5,  par.  7.  In  a  case  where,  because  of  previous  convictions,  the  [lunishment 
may,  under  the  order  inposing  limits  upon  punishments,  be  dishonoiable  discharge,  the 
department  commander  may  pro|)erly  require  the  charges  to  be  brought  to  trial  before  a 
general  court-martial,  notwithstanding  tliat,  if  the  alternative  punisliment  of  dishonor- 
able discharge  be  not  lesorted  to,  the  punishment  would  be  within  the  power  of  an  in- 
ferior couit.     Ihid  ,  491,  par,  1, 

An  offense  covered  by  the  order  is  cognizable  by  inferior  courts-martial  whenever  the 
limit  i)rescribed  in  the  order  may,  by  substitution  of  punishment  under  the  provisions 
of  the  order,  be  brought  within  the  punislnng  power  of  inferior  courts  as  defined  by  the 
83d  Article  of  War.     Ihid.,  par.  2. 

2  Act  of  June  18,  1898,  (30  Stat,  at  Large,  483.)  par.  931,  A.  R.  1895. 

■»  Ibid. 

^  Ibid. 

« Ibid. 


THE  INFERIOR   COURTSMAHTIAl.  213 

court  may  be  appointed,  liowever,  and  the  ofticer  who  is  zo  compose  it  may 
be  designated  by  superior  authority — that  is,  by  the  brigade,  division, 
department,  or  post  commander — when  sucli  a  course  is  by  him  deemed 
eitlier  proper  or  desirable.  The  terms  of  the  statute  in  respect  to  its  consti- 
tution are  thus  seen  to  be  extremely  general  and  authorize  the  court  to  be 
convened  by  the  commanding  oflicer  of  a  fort,  catnp,  or  other  place,  the 
garrison  of  which  is  composed  of  troops  of  the  same  or  d liferent  corps;  or  by 
the  comnumder  of  a  regiment,  battalion,  separate  company,  or  detachment  in 
the  held,  without  restriction  as  to  its  composition,  for  the  trial  of  enlisted 
men  charged  with  offenses  falling  within  the  jurisdiction  of  an  inferior  court 
in  respect  to  the  punishment  which  may  be  awarded  upon  conviction. 
When  but  one  officer  is  present  with  a  command  the  law  requires  that  he 
shall  constitute  the  court,  and  shall  hear  and  finally  determine  such  cases 
as  are  properly  referable  to  it  for  trial.' 

Jurisdiction. — The  jurisdiction  of  the  Summary  Court  is  exclusive  as  to 
all  cases  triable  by  inferior  courts-martial,  both  in  peace  and  war;  subject, 
however,  to  the  exception  already  explained  that  "  no  one  while  holding  the 
privileges  of  a  certificate  of  eligibility  to  promotion  shall  be  brought  before  it 
for  trial."  The  statute  also  provides  that  "  non-commissioned  officers  shall 
not,  if  they  object  thereto,  be  brought  to  trial  before  summary  courts  with- 
out the  authority  of  the  officer  competent  to  order  their  trial  by  general 
court-martial."  If,  therefore,  a  non-commissioned  officer  objects  to  trial 
by  Summary  Court,  such  objection  should,  properly,  take  the  form  of  a 
motion  or  request  for  trial  by  a  regimental  or  garrison  court,  and  such 
request,  if  formally  submitted,  should  be  granted  as  a  matter  of  right.  To 
confer  jurisdiction  for  the  trial  of  a  non-commissioned  officer,  tlie  authority 
of  the  officer  competent  to  order  his  trial  by  general  court-martial  should  be 
obtained  and  submitted  to  the  court  prior  to  the  introduction  and  arraign- 
ment of  the  accused.  In  respect  to  its  power  to  punish  the  Summary 
Court  is  subject  to  a  statutory  restriction  from  which  the  other  inferior 
courts  are  exempt,  in  that  it  is  forbidden  to  "adjudge  confinement  and  for- 
feiture in  excess  of  a  period  of  one  month,  unless  the  accused  shall  before 
trial  consent  in  writing  to  trial  by  said  court;  but  in  any  case  of  refusal  to 
so  consent]  the  trial  may  be  had  either  by  general,  regimental,  or  garrison 
court-martial,  or  by  said  Summary  Court;  but  in  case  of  trial  by  said  Sum- 
mary Court,  w'ithout  consent  as  aforesaid,  the  court  shall  not  adjudge  con- 
finement or  forfeiture  of  pay  for  more  than  one  month."  ^ 

Time  of  Trial. — As  regards  time  of  trial,  the  jurisdiction  of  a  Summary 
Court  is  not  affected  by  the  time  when  cases  are  brought  before  it,  the 
requirement  of  the  law  as  to  time  being  directory  only.     The  commanding 


1  Act  of  June  18.  1898.  (30  Stat,  at  Large,  483,)  par.  931,  A.  l;.  1895. 
»  Act  of  March  2,  1901.    (31  Stat,  at  Large,  901.) 


21 4:  MILITART  LAW. 

officer,  and  not  the  court,  ^vill  determine  when  and  wliat  cases  will  be 
brouo-ht  before  it.  Delay  in  the  trial  of  a  soldier  does  not  invalidate  the 
proceedings,  but  may  be  considered  by  the  court  in  awarding  sentence. ' 

Punishing  Power. — The  power  of  the  inferior  courts  to  punish  offenders 
which  is  conferred  by  the  83d  Article  of  War  and  by  the  Act  of  June  18, 
189S,  has  already  been  explained.  Under  the  authority  thus  conferred 2 
inferior  courts-martial  may  award  sentences  of  confinement  at  hard  labor 
and  forfeiture  of  pay  for  three  months,  and,  as  necessarily  included  in  this, 
may  sentence  non-commissioned  officers  to  be  reduced  to  the  ranks,  and  first- 
class  privates  may  be  reduced  to  the  second  class.  This  is  the  limit  of  their 
punishing  power.  For  those  offenses  for  which  a  limit  of  punishment  has 
been  prescribed  by  the  President  a  Summary  Court  is  restricted  to  the  kinds 
of  punishment  named,  except  as  to  the  substitutions  in  the  settled  ratio 
contained  in  Article  YII  of  the  President's  order.' 

Procedure. — As  its  name  implies,  the  procedure  of  this  court  is  summary 
in  character.'  Cases  are  brought  to  trial  within  twenty-four  hours  after  the 
arrest  of  the  accused,  or  as  soon  thereafter  as  practicable.'  The  Summary 
Court  sits  at  hours  fixed  by  the  post  commander  in  appropriate  orders  or,  in 
the  absence  of  such  orders,  at  the  convenience  of  tbe  court.'  The  officer 
constituting  the  court  is  not  sworn,  but  performs  his  duty  under  the  sanction 
of  his  oath   of  office.'     The  accused  appears  before  tlie  court  and,  as  the 

1  Manual  for  Courts-martial  (edition  of  July  11,  1898),  66,  par.  7. 

-  Acts  of  .June  18,  1898,  (30  Stat,  at  Large,  483  ;)  March  3,  1901,  (31  ibid.,  901.)- 

»  Executive  Order  of  March  30,  1898.     Gen.  Ord.  No.  16,  A.  G.  O.,  Ib98. 

*  The  procedure  of  the  Surumary  Court  should  be  similar  to  that  of  the  older  courts- 
martial.  The  charges  and  specitications  should  be  resid  to  the  accused,  and  be  be  required 
to  plead  guilty  or  not  guilty,  and  the  witnesses  should  be  sworu.  But  the  testimony  is 
not  set  fonh  iu  the  record.     Dig.  J.  A.  Gen.,  727,  par.  13. 

5  Act  of  June  18,  1898.  (30  Stat,  at  Large,  483.)  The  provision  of  the  Act  that  accused 
soldiers  shall  be  brought  before  the  Summary  Court  for  trial  "  within  twenty-four 
hours  from  the  time  of  their  arrest "  is  not  a  statute  of  limitations  nor  jurisdictional 
in  its  character,  but  directory  only— directory  upon  the  officers  whose  duty  it  is  to 
bring  offenders  before  the  court.  The  proceedings  will  thus  be  legally  valid  though  the 
accused  does  not  appear  for  trial  within  the  period  specilied.  So  held,  in  a  case  of  an 
accused  soldier  arrested  on  Saturday,  that  the  court  did  not  by  not  silting  on  Sunday 
lose  jurisdiction;  and  therefore  that  it  is  not  necessary  that  a  Sununary  Court  should  ever 
sit  on  a  Sunday.     Ibid.,  726,  par.  10. 

The  provision  in  the  Act  in  regard  to  the  trial  being  had  within  twenty-fours  of  the 
arre.st  being  directory  only,  a  trial  held  after  that  time  is  entirely  valid.  Thus  where  a 
soldier,  by'ieason  of  drunkenness  or  otherwise,  is  not  in  a  condition  to  be  tried  within 
that  tiiiie.  his  trial  may  be  postponed  till  he  is  in  such  condition.     Ibid.,  727,  par.  11. 

The  Summiiry  Court  will  be  opened  at  a  stated  hour  every  morning  except  Sunday, 
for  tlie  trial  of  such  cases  as  may  properly  be  brought  before  it.  Trials  will  be  had  on 
Sunday  only  wiien  the  exigencies  of  the  service  make  it  necessary.  Manual  for  Courts- 
martial  (ed.  of  .July.  1898),  p.  69,  par.  19 

«  Heldih&i  the  provision  of  the  94th  Article  of  War  relating  to  the  hours  of  session  of 
courts-martial  was  not  applicable  to  Summary  Courts.     Ibid.,  par.  12. 

^  The  Act  of  .Tune  18,  1898,  in  providing  that  the  trial  officer  "shall  have  power  to 
administer  oaths"  has  reference  to  the  oaths  of  witnesses.  The  officer  himself  is  not 
sworn.  But  the  witnesses  must  be  sworn  ;  and  in  a  case  in  which  it  appeared  that  they 
were  not  in  fact  sworn,  held  that  the  proceedings  and  sentence  were  invalidated,  and  that 
a  forfeiture  imposed  was  illegally  charged  against  the  accused,  who  should  be  credited 
with  the  amount  of  the  same  ou  the  next  muster  aud  pay  roll.     But  the  record  need  not 


THE  INFERIOR  COURTS-MARTIAL.  215 

right  of  challenge  does  not  exist,  is  arraigned  in  the  usual  manner.  If  his 
plea  be  guilty,  he  is  given  an  opportunity  to  make  a  statement  and,  if  he 
so  desires,  to  introduce  testimony  in  respect  to  character.  If  the  plea  be 
not  guilty,  the  trial  is  proceeded  with  in  the  usual  manner;  the  witnesses 
are  sworn,  but  the  testimony  is  not  recorded.  The  accused  is  given  the 
opportunity  to  cross-examine  the  witnesses  and  to  introduce  testimony  in 
his  defense. ' 

Previous  Convictions. — Charges  submitted  for  trial  by  a  Summary  Court 
are  required  to  be  accompanied  by  evidence  of  all  convictions  of  tlie  accused 
within  the  twelve  months  immediately  preceding  their  submission.  This 
evidence  is  furnished,  if  practicable,  by  the  officer  preferring  the  charges, 
and  is  submitted,  with  the  charges  and  specifications,  to  the  officer  com- 
petent to  order  their  trial ;  if  the  evidence  is  contained  in  the  Summary 
Court  record-book,  a  reference  to  it  in  the  charges  will  be  sufficient.  If  this 
evidence  is  not  submitted  with  or  cited  in  the  charges,  the  Summary  Court 
may  take  judicial  notice  of  any  such  evidence  as  the  record-book  contains.* 

Whenever  a  Summary  Court  takes  i^revious  convictions  into  consideration 
in  determining  its  sentence,  a  note  of  the  number  of  such  convictions  is 
required  to  be  made  in  the  Summary  Court  record. 

Record  and  Review. — The  Act  establishing  the  Summary  Court  contains 
the  requirement  that  "  there  shall  be  a  Summary  Court  record  kept  at  each 
military  post  and,  in  the  field,  at  the  headquarters  of  the  proper  command, 
in  which  shall  be  entered  a  record  of  all  cases  heard  and  determined  and  the 
action  had  thereon.'"  The  record  of  the  trial,  which  is  kept  in  a  book 
prepared  for  the  purpose,*  contains  the  name  and  designation  of  the 
accused,  the  number  of  the  Article  of  AV'ar  violated,  with  the  complete 
specification  in  full,  the  findings,  the  number  of  previous  convic- 
tions, and  the  sentence  imposed.  The  proceedings  as  thus  recorded  are 
authenticated  by  the  signature  of  the  officer  constituting  the  court,  and  are 
submitted  to  the  post  commander  for  review.'  The  i^roceedings,  finding, 
and  sentence  are  ajiproved  and  made  operative  by  the  signature  of  the 


state  in  terms  that  the  witnesses  were  sworn  ;    it  will  be  presumed  that  the  law  has  been 
complied  with   unless  the  coutrary  appears.     Manual   for  Courts-martial  (ed.  of  July 
1898),  p.  69.  par.  14. 

A  Siimnuiry  Court  is  not  empowered  to  issue  process  of  attachment  to  compel  tlie 
attendance  of  a  civilian  witness.     Ibid.,  par.  15. 

'  Tlie  accused  will  be  arraigned  and  allowed  to  plead,  according  to  court-martial 
practice.  When  the  accused  pleads  not  guilty,  witnesses  will  be  called  and  sworn  and 
evidence  received,  the  accused  being  permitted  to  testify  in  his  own  behalf  and  to  make 
a  statement,  but  the  evidence  and  statement  will  not  be  recorded.  Manual  for  Courts- 
martial,  (edition  of  July,  1898),  p.  67,  par.  9. 

«  Paragrapli  934,  A.  R.  1895. 

•  Manual  for  Courts-martial  (edition  of  July,  1898),  p.  67,  par.  13. 

•  Ibid. 

•  Act  of  Jane  18,  1898.     (30  Stat,  at  Large,  483.) 


216  MILITARY  LAW. 

reviewing  authority,  which  is  entered  in  the  book  itself,  opposite  the  record 
of  the  trial.' 

The  commanding  officers  who  are  authorized   by  law  to  approve  the  sen- 
tences of  Summary  Courts  have  power  to  remit  or  mitigate  the  same.     When 
the  commanding  officer  sits  as  a  Summary  Court,  no  formal  approval  of  the 
sentence  is  required  by  law;  but  he  should  sign  the  sentence,  in  such  case 
in  his  official  capacity  as  commanding  officer,  and  date  his  signature. 

Miscellaneous  Observations  respecting  Summary  Courts. — Charges  fot 
offenses  cognizable  by  inferior  courts  are  submitted  to  the  post  or  other 
proper  commander,  who,  if  he  thinks  the  accused  should  be  tried,  will  cause 
him  to  be  brought  before  the  Summary  Court.' 

Admonitions,  Withholding  of  Privileges,  etc.,  as  Disciplinary  Measures. 
— Commanding  officers  are  not  required  to  bring  every  dereliction  of  duty 
before  a  court  for  trial,  but  should  endeavor  to  prevent  their  recurrence  by 
admonitions,  the  withholding  of  privileges,  and  by  taking  such  steps  as  may 
be  necessary  to  enforce  their  orders  and  thus  secure  the  maintenance  of 
discipline  in  their  commands.  A  proper  use  of  this  power  will,  it  is  believed, 
make  it  unnecessary  to  bring  before  the  Summary  Court  many  of  the  trifling 
delinquencies  which  ought  not  to  be  made  the  subject  of  a  court-martial 
trial;  indeed,  by  a  resort  to  such  measures  of  prevention  such  trifling 
delinquencies  will  in  great  measure  be  prevented.  The  Army  Regulations 
make  it  the  duty  of  department  commanders  to  supervise  the  discipline  of 
their  commands  and  to  see  that  their  subordinate  commanders  fulfill  their 
duties  in  this  regard.' 

Reports. — A  monthly  report  of  cases  tried  by  Summary  Court  is  required, 
by  statute,  to  be  submitted  by  post  commanders.  These  reports  are  filed  in 
tlie  office  of  the  judge-advocate  of  the  territorial  department  in  which  the 
post  is  situated  or  the  command  stationed,  and  constitute  a  part  of  the 
permanent  records  of  the  office." 

GARRISON    COURTS-MARTIAL.       REGIMENTAL   COURTS-MARTIAL, 

Constitution  and  Composition. — The  regimental  and  garrison  courts- 
martial  have  already  been  described,  not  only  as  to  their  constitution  and 

'  Paragraph  932,  Army  Regulations  of  1895.  The  record  of  proceedings  from  day  to 
day  is  entered  in  a  Iwok  furnished  for  the  purpose  by  the  Adjutant-General  of  the  Army. 
For  form  of  record,  see  page  700,  post. 

^  Paratrraph  933,  Army  ReLnilalions  of  1895. 

'  Para'graplis  192,  193,  and '930,  ibid.  Manual  for  Courts-martial,  68,  paragraph  18. 
Company  commanders  are  now  authorized,  in  accordance  with  tlie  spirit  of  the  above 
paragraph,  and  subject  to  tlie  control  of  the  commanding  officer  of  the  post,  to  dispose 
of  cases  of  dereliction  of  duty  in  their  commands,  which  would  be  within  the  jurisdic- 
tion of  inferior  courts-martial,  by  recjuiring  extra  tours  of  fatigue,  unless  the  soldier  con- 
cerned demands  a  trial  ;  the  right  to  demand  such  trial  must  be  made  known  to  him, 
however,  before  the  penalty  is  imposed.     Circular  5,  A.  G.  O.,  1898. 

*  See  Act  of  June  18,  1898.  (30  Statutes  at  Large,  483.)  These  records  may  be  de- 
stroyed when  no  longer  of  use.     Ibid. 


THE  INFERWR    LOUJiTS-MAUTIAL.  217 

composition,'  but  as  to  their  juriadictiou,  including  tlie  limitations  upon  the 
same  which  are  imposed  by  statute  and  regulation.  Kxce])t  witli  the 
authority  of  the  officer  competent  to  order  their  trial  by  general  court-mar- 
tial, offenders  can  only  be  brought  before  these  courts  when  the  accused, 
being  a  non-commissioned  officer,  objects  to  being  tried  by  the  Summary 
Court  and  requests  a  trial  by  a  garrison  or  regimental  court-martial.' 
Whenever  it  becomes  necessary  to  convene  a  regimental  or  garrison  court 
for  the  trial  of  a  non-commissioned  officer  who  has  objected  to  trial  by  a 
Summary  Court,  the  order  convening  the  court  will  set  forth  the  fact  of  such 
objection.' 

Judge-advocates. — Kegimental  and  garrison  courts-martial  are  provided 
with  judge-advocates — suitable  officers  being  detailed  for  that  purpose  by 
the  convening  authority;'  tlieir  duties  are  precisely  the  same  as  those  of  the 
judge-advocate  of  a  general  court-martial.  As  the  accused  frequently  appeals 
before  these  tribunals  without  counsel,  the  duty  of  the  judge-advocate  to 
act  as  counsel  for  the  prisoner  in  such  cases  becomes  fully  operative,  and  he 
shonld  see  to  it  that  the  accused  does  not  suffer,  in  the  course  of  his  trial, 
in  consequence  of  any  ignorance  of,  or  from  any  misconception  respecting, 
hib  legal  rights,  and  that  he  has  full  opportunity  to  interpose  such  pleas  and 
to  make  such  defenses  as  will  best  bring  out  the  facts,  the  merits,  or  the 
extenuating  circumstances  of  his  case.' 

'  9ee  chapters  entitled  The  Constitution  of  Cocrts-martial,  The  Composition 
OF  Courts-martial,  and  The  Inferior  Courts. 

'  Act  of  .Iiine  18,  1898.     (30  Statutes  at  Large,  483.) 

'  Mauual  for  Courts-martiiil,  70  (edition  of  July,  1898).  paragraph  4. 

♦  lu  view  of  the  comprehensive  terms  of  the  74th  of  the  new  code  of  Articles  of  War, 
it  was  held  by  the  Judge  Advocate  General  in  December,  1879,  that  officers  empowered 
by  Articles  81  and  82  to  order  regimental  or  garrison  courts-martial  were  as  fully  author- 
ized to  detail  judge-advocates  for  the  courts  convened  by  them  as  were  the  officers  who 
were  empowered  by  Articles  72  and  73  to  order  general  courts.*  In  consequence  of  this 
opinion  General  Orders  No.  15,  A.  G.  O.,  of  February  15,  1870,  contained  the  require- 
ment that,  "  under  the  provisions  of  the  74th  Article  of  War,  officers  who  may  appoint 
a  court-martial  shall  be  competent  to  appoint  a  judge-advocate  for  the  same.  Accord- 
ingly, a  judge-advocate  is  hereafter  to  be  appointed  for  a  regimental  or  a  garri.sou  court- 
martial  in  like  manner  as  for  a  general  court."  General  Orders  No.  49,  of  1871,  prescrib- 
ing a  form  of  oath  for  tlie  recorders  of  regimental  and  garrison  courts,  is  rescinded. 
Dig.  J.  A.  Gen.,  455,  par.  1. 

Any  commissioned  officer  may  legally  be  appointed  judge-advocate  of  a  court-mar- 
tial. Thus  a  surgeon,  an  assistant  surgeon,  or  even  a  chai)lain,  is  legally  eligible  to  be 
so  detailed.     Ibid.,  p.iragraph  2. 

*  Ibid.,  458,  paragraph  10.  For  the  judge-advocate  to  counsel  the  accused,  when  a 
soldier,  to  plead  guilt}-  nuist,  in  general,  be  unbetittiug  and  inadvisable.  But  where 
such  plea  is  volunuirily  and  intelligeiuly  made,  the  judge-advocate  should  properly  ad- 
vise the  accused  of  his  right  to  offer  evidence  in  explanation  or  extenuation  of  his 
offense,  and,  if  any  such  evidence  exists,  shonld  assist  him  in  securing  it.  And  where 
no  such  evidence  is  attainable  in  the  case,  the  judge-advocate  should  still  see  that  the 
accused  has  an  opi)ortuiiity  to  present  a  "statement."  written  or  verbal,  to  the  court,  if 
he  has  any  desire  to  do  so.     Ibid.,  paragraph  lo.     See  also  paragraph  28,  page  462,  ibid. 

*  In  an  official  communication  of  May  13, 1880,  addressed  to  the  Commanding  General  of  the  Military 
division  of  the  Atlantic,  this  order  is  declared  by  the  Secretary  of  War  to  be  intended  to  be  manda- 
tory, not  directory  merely. 


218  MILITARY  LAW. 

Procedure. — Except  that  the  testimony  is  not  required  to  be  reduced  to 
Avriting,  in  which  their  practice  resembles  that  of  the  Summary-  Court,  the 
procedure  of  these  tribunals  is  in  all  respects  the  same  as  that  of  general 
courts-martial,  and  the  principles  governing  the  preparation  and  keeping  of 
the  record  apply  to  these  tribunals  with  the  same  force  as  to  general  courts. 

Review  and  Execution. — The  reviewing  officer  in  the  case  of  the  garri- 
son court  is  the  post  or  garrison  commander;"  in  the  case  of  the  regimental 
court  it  is  the  regimental  commander;  and  these  officers  have  power  by  their 
approval  or  confirmation  of  the  sentences  inqiosed  to  make  them  legal  and 
operative.  The  methods  of  review  are  the  same  as  those  employed  in 
respect  to  the  proceedings  of  general  courts-martial,  and  the  proceedings 
may  be  returned  to  the  court  for  revision  for  the  same  purpose  and  under 
the  same  restrictions  and  limitations  as  are  there  described.  The  sentences 
of  these  tribunals,  when  they  have  received  proper  confirmatory  action,  are 
published  in  orders,  and  carried  into  execution  in  the  same  manner  as  the 
sentences  of  general  courts-martial.' 

Regimental  Court  for  doing  Justice  — When  a  regimental  court  has  been 
convened  for  the  purpose  of  investigating  the  complaint  of  an  enlisted 
man,  under  the  authority  conferred  by  the  30th  Article  of  War,  its  pro- 

'  See  the  chapters  entitled  The  Ixcidknts  of  the  Tkial  aud  The  Recokd. 

«  See  the  104th,  109th,  and  112th  Articles  of  War. 

*  See  the  chapter  entitled  The  Reviewing  Authority.  Where  after  a  garrison 
court  had  tried  the  cases  referred  to  it,  but  before  its  proceedings  had  been  acted  upon, 
the  command  of  the  post  was  devolved  upon  the  officer  who  had  been  president  of  the 
court,  held  that  such  officer  would  legally  and  properly  act  upon  the  proceedings  ;  the 
case  not  being  one  in  which  the  action  of  the  department  or  other  higher  commander  was 
required  by  the  109th  Article  of  War.  Diir.  J.  A.  Gen.,  94,  par.  5.  See,  also,  Manual 
for  Court.s-nuirtial  (edition  of  July,  1898),  pp.  81,  82. 

So  where,  before  the  proceedings  of  a  garrison  court  convened  by  a  post  com- 
mander were  completed,  the  post  command  had  ceased  to  exist  and  the  command  be- 
come distributed  in  the  department,  Jield  that  the  department  commander,  as  the  legal 
successor  of  the  post  commander,  was  the  proper  authority  to  approve  the  proceedings 
under  this  Article.     Dig.  J.  A.  Gen.,  127,  par.  5. 

The  limitadou  of  the  authority  of  the  inferior  courts  in  regard  to  sentences  of  im- 
prisonment aud  fine  has  been  held  not  to  preclude  the  imposition  by  them  of  other 
punishments  sanctioned  by  the  usage  of  service  ;  sucli,  for  example,  as  reduction  to  the 
ranks  either  alone  or  in  connection  with  those,  or  one  of  those,  expressly  mentioned. 
Ibid.,  9.5,  par.  6.  The  Act  of  June  18,  1898,  (30  Stat,  at  Large,  488,)  expressly  confers 
upon  the  Summary  Court  authority  to  reduce  non-commissioned  officers  to  the  ranks. 

While  inferior  courts  have,  equally  with  general  courts,  jurisdiction  of  all  military 
offenses  not  capital,  yet,  in  view  of  the  limitation  upon  their  authority  to  sentence,  it  i8 
in  general  inexpedient  to  resort  to  them  for  the  trial  of  the  graver  offenses — such  as 
larcenies,  aggravated  acts  of  drunkenness,  protracted  absences  without  leave,  etc.,  a 
proper  and  adequate  punishment  of  which  would  be  beyond  the  power  of  such  tribu- 
nals. So,  as  a  reviewing  officer  is  never  authorized  to  add  to  the  punishment  imposed 
by  any  court-martial,  the  more  serious  offenses  should,  when  practicable,  be  referred 
for  trial  to  general  courts-martial,  which  alone  are  vested  with  a  full  discretion  to  im- 
pose punishment  in  proportion  to  the  gravity  of  the  offense.     Dig.  J.  A.  Gen.,  95,  par.  7. 

An  inferior  court,  however,  cannot  legally  decline  to  try  or  sentence  an  offender  upon 
the  ground  that  it  is  not  empowered,  under  the  83d  Article,  to  impose  punishment 
adequate  to  his  actual  offense.    Ibid.    See,  also,  par.  2,  G.  O.  40,  A.  G.  O.,  1898. 


THE  INFERIOR   COURTS-MARTIAL.  219 

ceedings  are  reviewed  by  the  regimental  commander  by  whom  the  court 
was  appointed,  or  by  liis  successor  in  oflice.  His  power  in  respect  to  review 
is  substantially  the  same  as  in  the  case  of  a  regimental  court  convened  for 
the  trial  of  enlisted  men;  lie  may  return  the  proceedings  for  revision,  he 
has  the  same  power  in  respect  to  approval  or  disapproval,  and  the  recom- 
mendation of  the  court  is  carried  into  effect  by  him,  if  the  acts  necessary 
to  be  done  in  order  to  make  such  recommendation  operative  are  within  his 
jurisdiction  or  authority  as  a  military  commander;  otherwise  he  submits 
the  findings  in  the  case,  Avith  his  recommendations  thereon,  to  the  officer 
having  authority  to  carry  them  into  effect.' 

'  For  a  discussion  as  to  the  procedure  and  jurisdiction  of  this  court  see  pages  225, 
226,  post. 


CHAPTER  XIII. 
COURTS  OF  INQUIRY. 

ODject  and  Purpose. — A  court  of  inquiry  is  an  agency  created  by  statute 
for  the  purpose  of  investigating  questions  of  fact  and,  when  required  to  do 
so  by  proper  authority,  of  giving  its  opinion  upon  the  merits  of  a  case  sub- 
mitted to  it  for  examination.'  If  the  several  statutes  relating  to  these 
bodies  be  examined,  it  will  be  seen  that  they  are  not  "  courts  "in  the  strict 
sense  of  that  term;  they  are  without  power  to  try  and  determine  questions 
of  guilt  or  innocence,  or  to  pass  sentences;  indeed,  their  function  resembles 
that  of  the  military  tribunals  whicii  have  already  been  described  only  in 
respect  to  their  power  to  summon  and  examine  witnesses,  and  to  reach  such 
conclusions  or  findings  of  fact  as  are  warranted  by  the  evidence  thus 
obtained.  In  the  exercise  of  this  power  they  are  under  considerable  limita- 
tions; they  cannot  compel  the  attendance  of  witnesses  who  fail  or  decline 
to  appear  in  obedience  to  their  summons,  nor  can  they  require  them  to 
testify  in  a  particular  case  which  is  undergoing  inquiry." 

Constitution  and  Composition.— Courts  of  inquiry  may  be  convened  by 
any  m?litary  commander,  that  is,  by  the  particular  military  commander  who 
has  power  under  the  Articles  of  War  to  convene  a  court-martial  for  the  trial 
of  the  charge  which  is  to  be  made  the  subject  of  inquiry.'  In  practice  they 
are  rarely  convened  by  any  less  authority  than  that  competent  to  convene  a 
general  court-martial — a  department  commander  at  any  time,  or  the  com- 

'  Wiuthrop,  Chap.  XXIV.  A  court  of  inquiry  is  not  a  court  in  the  legal  sense  of  the 
term,  but  rather  a  council,  comuiission,  or  board  of  investigation.  It  does  not  admin- 
ister justice  ;  no  plea  of  specific  issue  is  presented  to  it  for  trial  ;  its  proceedings  are  not 
a  trial  of  guilt  or  innocence  ;  it  does  not  come  to  a  verdict  or  pass  a  sentence.  For  pur- 
poses of  investigation,  however,  a  court  of  inquiry  in  this  country  is  clothed  with  ample 
powers,  and,  in  an  important  case,  its  opinion  may  be  scarcely  less  signiticant  and  even 
final  tlian  that  of  a  military  court  proper — that  is  to  say,  a  court-martial. 

-  iV  court  of  inquiry  has  no  power  to  punisli  as  for  a  contempt.  Such  power  of  this 
nature  as  is  conferred  by  Art.  8G  is  restricted  in  terms  to  courts-martial.  Moreover,  a 
court  of  inquiry,  not  being  in  a  proper  sense  a  court,  cannot  excncise  the  strictly  judicial 
function  of  punishing  contempts.*     Dig.  ,1.  A.  Gen.,  137,  par.  5. 

5  A  court  of  inquiry  should  not  in  general  be  ordered  by  an  inferior— post  or  regi- 
mental—commander where  the  clnirges  required  to  be  investigated  are  not  such  as  an 
inferior  court-martial  could  legally  take  cognizance  of.  Courts  of  inquiry  convened  by 
such  commanders  are,  however,  of  rare  occurrence  in  our  service.     Ibid.,  136,  par.  3. 

^  A  loose  observation  of  HoukJi  *  that  "  eontt-nipts  before  eourts  of  inquiry  are  as  mueh  punishable 
as  before  courts-martial  "  has  l)eeii  carelessly  repeated  by  several  .\iiierican  writers.  The  recent  Eng- 
lish writer.  Clode.  correctly  states  ttit-  law  (as  to  witnesses)  in  saying ''  that  a  court  of  inquiry  "  has  no 
power  to  punish  them  for  contumacv  oi-  silence." 

•  Preceiienis.  10.  "  Mil.  and  Mar.  Law,  198. 

220 


couiiTu  OF  jAt^i/ny.  221 

mander  of  a  division  or  a  separate  brigade  in  time  of  war.  Save  in  the  case 
of  the  President,  who  may  convene  these  tril>unals  whenever  in  his  opinion 
the  public  interest  demands  that  a  particuhir  investigation  be  ordered,'  they 
can  only  be  convened  upon  the  application  of  the  otticer  or  soldier  whose 
conduct  is  to  be  investigated  or  inquired  into.  The  terms  "officer"  and 
"soldier  "  are  used  here,  as  elsewhere  in  the  Articles  of  War,  in  strict  relation 
to  military  persons,'^  Courts  of  inquiry  are  composed  of  from  one  to  three 
commissioned  officers;  the  number  and  rank  of  members  being  determined, 
in  a  particular  case,  by  the  convening  authority.  A  recorder  is  also  detailed 
whose  statutory  duty  it  is  to  "  reduce  the  proceedings  and  evidence  to 
writing." ' 

Procedure. — While  courts  of  inquiry  are  not  vested  with  the  powers,  they 
are  not  restricted  by  some  of  the  limitations  to  which  courts-martial  are 
subject.  The  statute  of  limitations  does  not  apply  to  their  investigations, 
and  the  inquiry  takes  a  broader  scope  than  is  permitted  to  a  court-martial, 
not  being  contined  to  the  precise  issue  presented  by  a  particular  set  of 
charges  and  specifications.  The  procedure  of  these  bodies  closely  resembles 
thfit  of  courts-martial. 

Challenges. — Although  neither  Article  88  nor  any  provision  of  the  code 
specirically  authorizes  the  challenging  of  the  members  of  a  court  of  inquiry, 
yet  in  the  interests  of  justice,  and  by  the  usage  of  the  service  in  this  country, 
this  proceeding  is  permitted  in  the  same  manner  as  before  courts-martial. 
Article  117  requires  that  members  of  courts  of  inquiry  shall  be  sworn  "  well 
and  truly  to  examine  and  inquire,  according  to  the  evidence,  without  par- 
tiality, prejudice,"  etc.;  and  it  is  the  sense  of  the  service  that  their  com- 
petency so  to  do  should  be  liable  to  be  tried  by  the  same  tests  as  in  a  case  of 
a  court-martial.* 

'  115th  Article  of  War. 

'This  Article  authorizes  the  iiistitiiliou  of  a  co»ri  of  infjuiry  only  in  a  case  of  an 
"officer  or  soldier,"  and  the  vvord  "  officer  "  :is  employed  in  the  Articles  is  detine<l  by 
Sec.  1342,  Rev.  Sis.,  to  mean  commissioned  officer.  A  court  of  inquiry  cannot,  there- 
fore, be  convened  on  the  application,  or  in  a  case,  of  a  person  wlio  is  not  an  officer  (or 
.soldier)  of  the  Army  at  the  time.  Such  a  court  cannot  be  ordered  to  investigate  transac- 
tions of  or  charges  ngainst  a  party  who,  by  disini.ssal.  discharge,  nsignalion  etc..  has 
become  separated  froiu  the  military  service,  although  such  transactions  or  charges 
relate  altogether  to  his  acts  or  conduct  while  in  the  Army.  A  court  of  inquiry  cannot  be 
ordered  in  a  case  of  an  "  acting  a.ssistant  surgeon  "  wlio  is  not  an  otlicer  of  the  army,  but 
only  a  civil  employee.    Dig.  J.  A.  Gen.,  \?>r»,  par  1. 

'  116th  Article  of  War.  The  exK-nt  to  which  the  prosecution  of  the  iiuiuiry  sIi.mII  be 
left  in  Ihf  hands  of  the  recorder  is  determined,  as  will  prfseutly  be  shown,  Ijy  the  court 
itself 

*  Dig.  J.  A.  Gen.,  136,  par.  4.  Though  a  court  of  inijuiry  has  sometimes  been  com- 
p.'ued  to  a  grand  jury,  there  is  little  substantial  resemblance  between  the  two  bodies. 
The  accused  appcirs  and  examines  witnesses  before  such  a  court  as  fn-ely  as  before  a 
court-martial,  and  its  proceedings  are  not  reijuired  to  be  secret,  but  may  be  open  al  the 
discretion  of  the  court.*     Ibid.,  par.  3. 

•  Sfe  M;ici>riil>.  §  204;  ( )'Brif  n.  JOi:  DeHai't,  27''.  In  the  joint  resolution  of  Coneress  of  Fetiruarjr 
ri,  1874,  aurliorizinj;  tlie  Pi-i'sident  to  oonveiu"  Ji  cerf.Hin  s|>ecirtt  court  of  inquiry,  it  vvas  "  pmviited  tliat 
the  lU'ciised  may  be  allowed  ttie  same  rlplit  of  ctiiill-injc  as  is  allowed  liy  'aw  in  trials  hy  coiiit-martial.'" 
It  appears,  however,  to  liave  heen  recarded  in  tlie  itel)ate  on  this  resolution  (see  Congressional  Record, 
vol.  ■-',  Nos.  'W,  \0)  that  this  provision  was  unnecessary  to  entitle  the  party  to  the  privilege. 


222  MILITARY  LAW. 

Conduct  of  the  Investigation.— The  investigation  is  conducted  by  the 
court  or,  under  its  direction,  by  the  recorder,  along  lines  of  inquiry  deter- 
mined upon  and  laid  down  by  the  court  itself.  The  officer  at  whose  request 
the  court  has  been  convened  is  entitled  to  be  present  throughout  the  inquiry; 
he  is  also  entitled  to  the  privilege  of  cross-examining  the  witnesses  called  in 
support  of  the  accusations,  he  may  summon  witnesses  to  testify  in  his 
defense,  and  may  address  the  court  or  submit  a  statement  of  his  case  at  the 
conclusion  of  the  investigation.  Where  the  court  is  ordered  by  the  Presi- 
dent, the  several  officers  whose  conduct  is  being  made  the  subject  of  inquiry 
are  entitled  to  be  present,  in  tarn,  to  cross-examine  witnesses  and  to  submit 
testimony  as  above  described.  The  sessions  of  the  court  are  open  or  closed 
at  the  discretion  of  the  convening  authority  or,  in  the  absence  of  instruc- 
tions in  that  regard,  at  the  discretion  of  the  court.' 

Record.— The  record  of  a  court  of  inquiry  consists  of  two  parts:  (1)  the 
testimony  of  the  witnesses  as  given  by  them  during  the  hearing,  including 
such  documentary  evidence  as  may  have  been  submitted  and  the  arguments 
or  statements  of  the  officers  or  soldiers  whose  conduct  has  been  made  the 
subject  of  investigation,  and  (2)  the  report  proper,  that  is,  a  recital  or 
statement  of  the  facts  constituting  the  occurrence  referred  to  the  court  for 
examination.  This  report  is  in  the  form  of  a  narrative,  and  is  based  upon, 
and  derived  from,  the  testimony  submitted  during  the  investigation;  and 
every  statement  which  it  contains  must  be  fully  supported  by  the  evidence 
adduced.  To  that  end  the  testimony  of  individuals  may  be  cited  or 
referred  to  in  the  report,  and  the  use  of  foot-notes  and  cross-references  is 
also  authorized.  The  proceedings  of  a  court  of  inquiry  when  authenticated 
by  the  signatures  of  the  recorder  and  the  president  are  forAvarded  to  the 
convening  officer.^ 

Opinion.— The  119th  Article  of  War  contains  the  requirement  that  a 
court  of  inquiry  shall  not  give  an  opinion  on  the  merits  of  the  case  inquired 
of  unless  specially  ordered  to  do  so.'  Courts  of  inquiry  are  convened  to 
accomplish  a  definite  purpose.  They  investigate  the  conduct  of  or  accusa- 
tions against  individuals,  the  management  of  administrative  or  military 
affairs,  the  conduct  of  military  operations,  and  the  causes  which  have  con- 
tributed to  the  success  or  failure  of  particular  undertakings.  Such  investi- 
gations being  exhaustive  in  their  character,  those  who  are  charged  with  them 
are  peculiarly  fitted  to  express  an  opinion  as  to  the  merits  of  a  particular 
case  thus  investigated  by  them.  When  required  to  do  so  therefore  by  the 
convening  authority,  and  not  otherwise,  courts  of  inquiry  may  submit  such 
opinion  on  the  merits  of  the  case.' 

'Dig.  J.  A.  Gen.,  136,  par.  3. 

» 120tli  Article  of  War. 

» 119tli  Article  of  War.  , 

*  An  opinion  given  by  a  court  of  inquiry  is  not  m  the  nature  of  a  sentence  or  aa]U- 


COURTS  OF  INQUIRY.  223 

Nature  of  Opinion. — Where,  as  in  the  majority  of  cases,  the  inquiry  is 
instituted  with  a  view  of  assisting  the  determination,  by  tlie  President  or  a 
military  commander,  of  the  question  whether  the  party  should  be  brouglit  to 
trial,  the  opinion  of  the  court  will  i)roi)erly  be  as  to  whetlier  further  pro- 
ceedings before  a  court-martial  are  called  for  in  the  case,  with  the  reasons 
for  the  conclusions  reached.  Where  no  such  view  enters  into  the  inquiry, 
but  the  court  is  convened  to  investigate  a  question  of  military  riglit,  respon- 
sibility, conduct,  etc.,  the  opinion  will  properly  confine  itself  to  tlie  special 
question  proposed  and  its  legitimate  military  relations.  A  court  of  inquiry, 
composed  as  it  is  of  military  men,  will  rarely  find  itself  called  upon  to 
express  an  opinion  u})on  questions  of  a  purely  legal  character.' 

Use  of  Record  in  a  Subsequent  Trial. — The  121st  Article  of  War  autho- 
rizes the  proceedings  of  a  court  of  inquiry  to  "  be  admitted  as  evidence  by  a 
court-martial  in  cases  not  capital  nor  extending  to  the  dismissal  of  an 
officer,  provided  that  tlie  circumstances  are  such  that  oral  testimony  cannot 
be  obtained."  ^ 

dication  pronounced  upon  a  trial.  Upon  a  subsequent  trial  by  court-martial  of  charges 
investigated  by  a  court  of  inquiry,  the  accused  cannot  plead  the  proceedings  or 
opinions  of  such  court  as  a  former  trial,  acquittal,  or  conviction.  Dig.  Opin.  ,J.  A.  Gen., 
137,  par.  1. 

While  it  is  of  course  desirable  tluit  the  members  of  a  court  of  inquiry,  directed  to 
express  an  opinion,  shimld  concur  in  their  conclusions,  they  are  not  required  to  do  .so  by 
law  or  regulation.*  The  majority  does  not  govern  the  minority,  as  in  the  case  of  a  find- 
ing or  sentence  by  court-martial.  If  a  member  or  a  minority  of  members  caiuiot  con- 
scientiously, and  without  a  weak  yielding  of  independent  convictions,  agree  with  the 
majority,  it  is  better  that  such  member  or  members  should  formally  disagree  and  present 
a  separate  report  or  reports  accordingly.  Tlie  very  disagreement,  indeed,  of  intelligent 
minds  is  a  material  and  important  fact  in  the  case,  and  one  of  which  the  reviewing 
authority  is  entitled  to  have  the  advantage  in  his  consideration  of  and  action  upon  the 
same.     Ibid.,  par.  2. 

It  is  not  irregular,  but  authorized,  for  a  court  of  inquiry,  iu  a  proper  case,  to  reflect, 
in  connection  with  its  opinion,  upon  any  improper  language  or  conduct  of  the  accused, 
prosecuting  witness,  or  other  person  appearing  before  it  during  the  investigation.!  Ibid., 
par.  4. 

^  Ibid.,  138,  par.  3.^ 

-  121st  Article  of  AVar.  While  the  proceedings  of  a  court  of  inquiry  cannot  be 
admitted  as  evidence  on  the  merits  upon  a  trial  before  a  court-martial  of  an  ollense  for 
which  the  sentence  of  dismissal  will  be  mandatory  upon  conviction.  ^  yviheld  that  upon 
the  trial  of  such  olTense,  as  upon  any  other,  such  proceedings,  properly  authenticated, 
would  be  admissible  in  evidence  for  the  purpose  of  impeaching  the  statement  of  a  wit- 
ness upon  the  trial  who,  it  was  proposed  to  show,  had  made  quite  different  statements 
upon  the  hearing  before  the  court  of  inquiry.!     Ibid.,  139. 

*  In  tlie  case  of  the  court  of  inquiry  (composed  of  seven  general  officers)  on  the  Cintra  Convention, 
in  1808,  the  meinhers  who  disseiite<l  from  the  majority  were  required  by  the  convening  authority  to 
put  on  recor.l  their  opinions,  and  three  dissenting  opinions  were  accordingly  given.  A  further 
instance,  in  which  two  of  the  five  members  of  the  court  gave  each  a  separate  dissenting  opinion,  is 
cited  by  lI<>U£:h.»  Mainly  upon  the  authority  of  the  former  case,  both  Hough  "and  Simmons'-  hold  that 
members  non-concurring  with  the  majority  are  entitled  to  have  their  opinions  r^^ported  in  the  record. 

t  Tims  the  court  of  inquiry  on  the  conduct  of  the  Seminole  War  animadverted,  in  its  opinion,  un- 
favorably upon  certain  offensive  and  reprehensible  language  employed  against  each  other  by  the  two 
general  officers  concerned,  the  one  in  his  statement  to  tlie  comt  and  the  other  in  his  oflicial  com- 
munications which  were  put  in  evidence.     (See  G.  O.  13.  Headquarters  of  Army.  1^.37.) 

t  In  an  exceptional  case,  that  of  the  special  court  of  iiKjuiry  authorized  by  Congress  in  the  joint 
resolution  of  February  13,  1374,  the  court  was  recjuired  to  express  an  in>i"ioii  not  only  upon  the 
"moral"  but  upon  tlie  "technical  and  legal  responsibility"  of  the  officer  for  the  "offenses" 
charged. 

§  Compare  O.  O.  33.  Department  of  Arizona,  1871. 

1  See  a.  C.  M.  O.  40,  H.  g   A.,  ISSO. 

•  Precedents,  642.  ^  Ibid.  '§339. 


224  MILITARY  LAW. 


THE    KEDRESS    OF   WRONGS. 

Methods  of  Redress  in  the  Case  of  a  Commissioned  Officer. — The  29th 
Article  provides  that  "  any  orticer  who  thinks  himself  wronged  by  the  com- 
manding orticer  of  his  regiment  and,  upon  due  application  to  such  com- 
mander, is  refused  redress  may  complain  to  the  general  commanding  in  the 
State  or  Territory  wliere  such  regiment  is  stationed.  The  general  shall 
examine  into  said  complaint  and  take  proper  measures  for  redressing  the 
wrong  complained  of;  and  he  shall,  as  soon  as  possible,  transmit  to  the 
Department  of  War  a  true  statement  of  such  complaint,  with  the  proceed- 
ings had  thereon." 

The  Article  above  set  forth  provides  a  very  inadequate  remedy  for  a 
wrong  suffered  by  a  commissioned  officer  at  the  hands  of  a  military  superior; 
so  inadequate,  indeed,  as  to  have  given  occasion  for  the  existence  of  another 
method  of  obtaining  redress  in  cases  of  by  no  means  infrequent  occurrence 
to  which  the  Article  does  not  apply.  The  29t]i  Article  applies,  as  will  be 
seen,  to  a  single  case  or  class  of  cases,  that  in  which  an  officer  "  thinks  him- 
self Avronged  by  the  commanding  officer  of  his  regiment."  In  a  case 
properly  arising  under  it,  therefore,  the  remedy  provided  would  of  course  be 
applied  to  the  exclusion  of  every  other.' 

Where,  however,  the  wrong  or  injury  for  which  redress  is  sought  has 
been  suffered  at  the  hands  of  a  superior  officer  not  standing  toward  the 
complainant  in  the  relation  of  a  regimental  commander,  the  following  prac- 
tice, based  upon  the  custom  of  service,  may  be  resorted  to.  In  order  that  a 
case  may  arise  to  which  the  method  here  outlined  may  with  propriety  be 
applied,  the  following  conditions  should  be  fulfilled:  (1)  The  wrong  com- 
plained of  should  not  constitute  a  military  offense,  that  is,  a  violation  of  a 
specific  Article  of  War,  since  the  remedy  in  that  case,  which  consists  in  the 
submission  of  charges  and  specifications  for  the  offense  alleged  to  have  been 
committed,  is  not  only  specific  but  exclusive;  (2)  Redress  should  have  been 
sought  from  the  superior  by  whom  the  wrong  is  alleged  to  have  been  com- 
mitted. These  conditions  having  been  fulfilled,  the  officer  should  present 
his  case,  preferably  in  writing  and  through  the  regular  channels  of  official 
communication,  to  the  commander  having  jurisdiction  to  redress  the  wrong 
complained  of. 

Appeal.— If  no  redress  be  afforded  by  such  officer,  or  if  the  remedy 
applied  by  liim  be  inadequate,  the  case  may  be  carried  through  the  proper 
military  channels  to  the  Secretary  of  War,  as  the  representative  of  the  Presi- 
dent, who  is  the  commander-in-chief  of  the  military  forces  of  the  United 


'  This  Article  is  expressly  confined  to  cases  of  alleged  wrongs  ou  the  part  of  regi- 
mental commanders.  It  cannot  be  extended  to  apply  lo  a  complaint  of  wrong  done  by 
a  post  cf)mmaiider  who  is  not  also  tlie  conimanding  ollicer  of  the  regimeul  of  the  com- 
plainant.    I)i<_'.  .J.  A.  Gen  ,  34. 


COURTS  OF  IM^UIRY.  225 

States.  Snch  an  appeal  is  not  in  general  advisaMe,  save  in  an  extreme 
ca^e  where  redress  has  been  plainly  denied  and  in  which  the  circumstances 
of  hardship  are  peculiar  and  unusual.  Should  the  appeal  be  found  ujton 
due  examination  to  be  frivolous  or  based  upon  insntiicient  grounds,  tdie 
officer  submitting  it  may  be  made  the  subject  of  rebuke  or  admonition  or, 
in  an  extreme  case,  may  be  subjected  to  such  measures  of  a  disci])liiiary 
character  as  may  be  demanded  by  the  strict  necessities  of  the  case. 

Methods  of  Redress  in  the  Case  of  an  Enlisted  Man. — A  method  of 
obtaining  redress,  in  many  respects  analogous  to  that  already  described  in 
its  relation  to  commissioned  officers,  exists  in  behalf  of  enlisted  men,  in  all 
cases  not  covered  by  tiie  provisions  of  the  30th  Article  of  War,  which  will 
presently  be  explained.  The  procedure  under  the  'M)i\\  Article,  though 
applicable,  according  to  its  terms,  to  "any  soldier  who  thinks  hinjself 
wronged  by  any*ofl[icer,"  is,  by  reason  of  the  peculiar  limitations  upon  the 
jurisdiction  of  the  regimental  court-martial,  restricted  to  cases  arising  under 
the  immediate  command  of  the  regimental  commander,  and  is  not  applicable 
to  persons  not  under  the  command  of  that  officer  or  to  cases  which  it  is 
beyond  his  power  to  redress.  If,  therefore,  a  wrong  be  inflicted  upon  -an 
enlisted  man  to  which,  for  the  reasons  above  stated,  the  30th  Article  would 
not  atford  relief,  such  enlisted  man  would,  through  the  captain  of  his 
company  or  other  immediate  commander,  invoke  the  remedy  heretofore 
explained  in  its  application  to  the  case  of  a  commissioned  officer.' 

The  Regimental  Court  for  doing  Justice. — In  addition  to  the  criminal 
jurisdiction  conferred  upon  the  regimental  court  by  the  81st  and  83d 
Articles  of  War,  the  29th  Article  provides  that  "  any  soldier  who  thinks 

'  Tlie  duty  of  lieMiing  and  iiivestis^ating  fompluints  is  one  of  tlie  liigliest  importance 
to  discipline,  and  should  be  not  only  personally  hut  carcfull}*  and  patiently  exercised 
by  comiiany  coniniandeis  and  otheis  to  whom,  under  existing  regulations  and  customs, 
such  complaints  are  habitually  addressed.  From  their  nature  they  are  not  susceptible 
of  delegation,  especially  to  non-commissioned  officers.  A  superior  officer  who  yields  to  a 
non-commissioned  officer  powers  or  privileges  not  appropriate  to  his  rank  and  to  which 
he  is  not  properl\'  entitled,  places  the  latter  in  a  false  jiosition,  while  at  the  same  time 
making  himself  in  great  i)arl  responsible  for  ;iny  abuse  of  authority  on  the  part  of  his 
inferior.  Dig.  J.  A.  Gen.,  ~V61.  In  this  C()nne(tion  it  has  been  held  by  the  Juilge-Advocate 
General  that  "Though  I  am  aware  of  nolawi/i  <(?r*//s  prt)hibiting  a  company  commander 
from  delegating  lo  a  iiou-commi.ssioned  ottic-er  so  important  a  part  of  his  authority  and 
duty  as  the  eutertaiinug  in  the  first  instance  of  the  complaints  and  requests  of  the  men  of 
the  company,  1  can  but  consider  such  a  delcL'ation  to  be  at  variance  with  the  principle  and 
system  of  our  military  organization.  Further,  such  a  practice,  as  it  jippears  tome,  must 
Icud  to  render  commissiducd  officers  negligent  and  irresponsible,  and  noncommissioued 
officers  arbitrary  and  overbearing.  Indeed  1  can  conceive  of  nothing  that  would  sooner 
spoil  a  good  sergeant  than  to  place  him  in  a  position  to  determine  at  his  discretion 
whether  the  complaints  of  his  inferiors  should  be  entertained  by  his  superior,  and  to 
color  tiiem  at  will  when  tr.ansmitteii.  Thus,  though  the  practice  may.  in  some  inst.ances, 
have  been  found  convenient  and  innocuous,  its  ellect  in  general  must,  I  think,  be  prejudi- 
cial lo  the  best  interests  of  the  service."  *     Dig.  J.  A.  Gen.,  270. 


•  Extract  from  an  indorsement  of  the  Jiidtre- .advocate  General  in  submitting  to  the  Sf»cretar.v  of 
War  a  ODnmiuiiication  (conciiried  in  1\\  the  JiidKe-.-Vdvoeate  Generali  from  Brig.  Gen.  E.  O.  C.  Ord. 
commanding  Dcpr.  of  Texas,  in  regard  to  the  illations  between  the  coiiunissiont-d  un<i  uvn-cijiiiuii»- 
stoned  officers  of  companies. 


228  MILITARY  LAW. 

otherwise  the  original  record  forms  no  part  of  the  appelhite  proceedings,  and 
the  action  of  the  general  court-martial  is  that  of  an  appellate  court  properly 
so  called,  and  in  nowise  resembles  the  procedure  of  the  civil  courts  upon 
writs  of  error. 

The  Article  above  cited  confers  upon  the  court  of  appeal  a  summary 
power  to  punish  the  party  appealing  if  the  appeal  appears  to  be  "  groundless 
and  vexatious."  The  proceedings  in  this  case  are  summary  in  character. 
Tiie  charge  against  the  appellant  is  formulated  by  the  court  after  due  delib- 
eration, and  he  is  given  an  opportunity  to  show  cause  why  sentence,  should 
not  be  passed  upon  him.  The  findings  and  sentence  are  submitted  to  the 
reviewing  authority  in  the  ordinary  way,  and  are  approved  and  carried  into 
effect  in  the  usual  manner. 

It  is  thus  seen  that  the  procedure  of  the  regimental  court  when  convened 
for  the  purpose  of  doing  justice  is,  in  many  respects,  analogous  to  that  of  a 
court  of  inquiry;  and  its  investigation  rehites  to  the  fiscal  or  administrative, 
as  distinguished  from  the  criminal  or  penal  side  of  the  case  before  it.  The 
justice  done  consists  rather  in  the  correction  of  errors  in  administration  and 
accounting  than  in  the  infliction  of  penalties  for  offenses  committed  by  the 
officer  whose  conduct  has  been  complained  of,  since  the  court  is  forbidden 
to  entertain  a  criminal  charge  against  a  commissioned  officer  by  the  express 
terms  of  the  83d  Article  of  War. 


CHAPTER  XIV. 

MILITAKY    BOARDS. 

Boards;  Constitution,  Powers,  etc. — A  hoard  is  a  committee  of  commis- 
sioned orticers  culled  toj^ether  by  u  proper  military  commiiiunder  with  a 
view  to  conduct  an  examination,  to  investigate  a  question  of  fact,  and,  if 
called  upon,  to  submit  a  recommendation  with  respect  to  the  same,  or  to 
determine  questions  of  tiscal  or  property  responsil;lity.  Those  charged  with 
the  examination  of  ofticers,  enlisted  men,  and  civilians  with  a  view  to  their 
appointment,  promotion,  or  retirement  are  created  by  law ;  others — boards 
of  survey,  for  example — are  provided  for  in  the  Army  Regulations;  still 
others  are  called  into  being  by  a  proper  convening  officer,  whose  authority 
in  this  regard  is  limited  to  the  institution  of  an  inquiry  into  a  transaction 
the  subject  of  and  the  parties  to  which  are  under  his  comnuind  or  other- 
wise subject  to  his  jurisdiction.  Unless  expressly  authorized  by  statute, 
military  boards  are  without  authority  to  summon  or  examine  witnesses,'  but 
may  receive  and  act  upon  evidence  submitted  to  them  in  the  form  of  affi- 
davits duly  authenticated  in  accordance  with  law." 

'  A  board  of  officers  convened  to  investigate — obtain,  or  hear  and  examine,  evidence 
— and  report,  can,  in  the  absence  of  specilic  statutory  authority,  exercise  none  of  tlie 
peculiar  legal  functions  either  of  a  court-martial  or  of  a  court  of  inquiiy.*  Its  members 
cannot  be  sworn  ;  it  cannot  swear  witnesses  ;  civilian  witnesses  cannot  be  compelled  to 
appear  before  it ;  nor  are  the  witnesses  wlio  appear  and  testify  legall}'  entitled  to  any 
compensation  for  attendance  or  travel.  Such  a  board  cannot  tri/,  nor  can  it  sentence. 
There  is  properly  no  "accused  "  party  required  or  entitled  to  appear  before  it  as  before 
a  court-martial  or  court  of  imiuiry.  It  is  not  restricted  by  law  as  to  the  period  of  its 
siltinirs,  nor  is  it  aiTected  by  any  statute  of  limitations.  Its  members  (though  in  this, 
indeed,  it  does  not  dilTer  from  a  court  of  inquiry)  may  present  two  or  more  reports 
where  they  cannot  concur  in  one.     Disr.  J.  A.  Gen.,  178,  par.  1. 

As  a  court  of  inquiry  cannot  be  ordered  in  a  case  of  a  civilian,  a  body  of  officers  con- 
vened to  inquire  into  and  report  upon  the  facts  of  a  case  of  an  officer  who  ha.'s  been 
legally  dismissed  from  the  service  is  a  mere  board  of  investigation,  and  can  exercise 
none  of  tlie  special  jioweis  of  a  court-martial  or  court  of  inquiry.     Ibid.,  178,  par.  2. 

•  The  instruments  of  evidence  above  referred  to  are  called  "  affidavits  "  to  distinguish 
them  from  the  formal  "depositions"  which  are  authorized  by  law  to  be  submitted 
in  evidence  in  court-martial  tri.ils.  An  affidavit  may  therefore  be  defined  as  a  >-worn 
statement,  submitted  to  a  board  by  an  interested  party,  with  a  view  to  determine  a 
question  of  property  or  admitiistrative  responsihilit}-.  Being  ex  p<trte  in  character,  au 
affidavit  has  not  the  evidential  value  of  a  regul;irly  executed  deposition.  Such  sworn 
statements,  or  affidavits  may  now  lie  authenticated  in  accordance  with  the  requiremenls 
of  Section  4  of  the  Act  of  July,  181)4,  ('-27  Stat,  at  Large.  278.)  winch  provides  "that 
judge-advocates  of  departments  and  of  courts-martial,  and  the  trial  officers  of  summary 
courts,  are  liereby  .autiiorized  to  administer  oaths  for  the  purposes  of  the  aduunistratiou 
of  military  justice,  and  for  other  purposes  of  military  aiiuiiuistralion." 

*  Dig.  J.  A.  Gen.,  173,  par.  i. 

229 


230  MILITARY  LAW. 

Rules  of  Procedure;  Reports. — The  proce;lure  of  tliese  boards  should 
conform  as  nearly  as  possible  to  that  prescribed  for  courts-martial.  Their 
records  are  prepared  iu  accordance  with  similar  rules,  and  usually  begin  with 
the  title  or  object  of  the  investigation,  as  set  forth  in  the  convening  order, 
followed  by  a  copy  of  the  order  authorizing  its  action  or  prescribing  the 
scope  and  purpose  of  its  inquiry.  The  proceedings  are,  as  a  rule,  authenti- 
cated by  the  signatures  not  only  of  the  president  and  recorder,  but  by  those 
of  all  the  members.  When  completed  they  are  submitted  to  the  convening 
authority  for  his  approval  or  disapproval,  or  for  his  orders  in  the  case.  The 
number  of  copies  to  be  prepared  and  submitted  is  determined  by  the  Army 
Eegulations  or,  in  the  absence  of  such  provision,  by  the  convening  order. 

Review. — The  reviewing  authority  in  each  case  is  pointed  out  by  the 
statute  or  regulation  authorizing  the  board;  if  created  without  such 
authority,  the  proceedings  are  reviewed  by  the  officer  by  whom  the  board 
was  created.  Unless  authorized  by  law  or  regulation,  such  bodies  are 
informal,  and  their  findings  of  fact  and  their  opinions,  when  submitted,  are 
merely  advisory  in  character  and  can  acquire  only  such  operative  force  in  a 
particular  case  as  may  be  given  them  by  the  orders  of  the  convening  officer. 

BOARDS    OF    EXAMINATION. 

General  Requirements. — The  statutes  regulating  the  appointment  and 
promotion  of  commissioned  officers  impose,  as  a  condition  precedent  to  such 
appointment  or  promotion,  tlie  requirement  that  the  officer  or  candidate 
shall  be  subject  to  an  examination,  to  be  prescribed  by  the  President,  with 
a  view  to  determine  his  fitness  for  appointment  or  for  promotion  to  a  higher 
grade  of  military  rank.'  The  President  is  also  authorized  to  prescribe  a 
system  of  examinations  for  enlisted  men  for  the  purpose  of  determining  their 
fitness  for  promotion  to  the  grade  of  second  lieutenant,'''  These  examina- 
tions are  conducted  with  a  view  to  ascertain  (1)  the  physical  capacity  of 
the  candidate  to  perform  the  duties  of  the  higher  grade,  and  (2)  his  char- 
acter and  his  professional  qualifications  for  advancement.^ 

Constitution  and  Composition  of  Boards  of  Examination. — The  constitu- 
tion of  the  several  boards  of  examination  is  determined  ])y  law,  and  they  are 
convened  in  every  case  by  the  Secretary  of  War.  Their  composition  is 
regulated  by  the  same  authority,  subject  to  the  restriction  "  that  the  exami- 
nation of  officers  appointed  in  the  Army  from  civil  life,  or  of  ofiicers  who 
were  officers  of  volunteers  only,  or  were  officers  of  the  militia  of  the  several 
States  called  into  the  service  of  the  United  States,  or  were  enlisted  men  in 
the  regular  or  volunteer  service,   either  in  the  Army,  Navy,  or  Marine 

»  See,  Sections  1159.  1172,  1'206,  1207,  Revised  Statutes;  the  Acts  of  October  1,  1890, 
(26  Stat,  at  Large,  562,)  October  1,  1890,  (26  ibid.,  653,)  and  July  27,  1892(27  ibid., 
276). 

2  See  the  Act  of  July  30,  1892  (27  ibid..  330). 

»  Sections  2  and  3,  A(;t  of  Oct()l)fr  1,  1890  (26  St;it.  at  Lurge,  562). 


MILITARY  BOARDS.  231 

Corps,  during  the  war  of  the  rebellion,  shall  be  condncted  by  boards  com- 
posed entirely  of  ofllcers  who  were  api)ointed  from  civil  life  or  of  officers  who 
were  ofticers  of  volunteers  only  during  said  war,  and  such  examination  shall 
relate  to  fitness  for  practical  service  and  not  to  technical  and  scientific 
knowledge."  ' 

The  following  composition  is  required  by  existing  orders: 

Officers  of  the  Line. — The  board  will  consist  of  five  members  and  a 
recorder.  Two  of  the  members  will  be  medical  ofticers  and  tliree  will  be 
line  officers  senior  in  rank  to,  and,  as  far  as  practicable,  from  the  same  arm 
of  service  as,  tlie  officer  to  be  examined. 

Officers  of  the  Corps  of  Engineers,  the  Signal  Corps,  the  Ordnance, 
Quartermaster'' s,  and  Subsistence  Departments. — The  board  will  consist  of 
five  members,  two  of  whom  will  be  medical  officers  and  three  of  the  same 
corps  or  department,  when  practicable,  as  the  officer  to  be  examined,  and 
senior  to  him  in  rank,  the  junior  of  whom  will  act  as  recorder. 

Medical  Officers. — The  board  will  consist  of  three  medical  officers,  senior 
in  rank  to  the  officer  to  be  examined,  the  junior  of  whom  will  act  as 
recorder;  provided  that  whenever  a  medical  officer  is  found  to  be  i)h3'sically 
disqualified  the  board  will  report  to  the  adjutant-general  and  adjourn,  pend- 
ing appointment  of  two  additional  members,  who  may  be  from  anv  line  or 
staff  officers  available,  senior  in  rank  to  the  officer  to  be  examined.  The 
board  will  then  proceed  under  the  rules  governing  retiring  boards.' 

In  practice  boards  for  the  examination  of  officers  of  the  line,  and  of  can- 
didates for  appointment  from  the  ranks  or  from  civil  life,  are  composed  of 
officers  of  the  line  and  of  medical  officers;  boards  for  the  examination  of 
officers  of  the  staff,  or  for  the  selection  of  appointees  thereto,  are  composed 
as  a  rule  of  officers  of  the  department  to  which  the  candidate  belongs  or 
into  which  lie  desires  to  be  appointed.  Boards  of  examination  are  provided 
with  recorders;  in  some  cases  the  duty  of  recorder  is  performed  ])y  the  junior 
member,  in  others  by  an  officer  appointed  for  the  purpose.' 


'  Section  3,  Act  of  October  1,  1890  (26  ibid.,  562). 

»  General  Orders  41,  A.  G.  O.,  1897. 

'  For  rules  regulating  the  composition  of  examining  boards  under  the  Act  of  October 
1,  1890.  see  General  Orders,  No.  128,  A.  G.  0.,  of  1890. 

The  Act  of  February  2,  1901,  provides  that  "  When  the  exigencies  of  the  service  of 
any  officer  who  would  be  entitled  to  promotion  upon  examination  require  him  to  remain 
absent  from  any  place  where  an  examining  board  could  be  convened,  the  President  is 
hereby  authorized  to  promote  such  officer,  subject  to  examination,  and  the  examination 
shall  take  place  as  soon  thereafter  as  practicable.  If  upon  examination  the  olRcer  be 
found  disqualified  for  promotion,  he  shall,  upon  the  approval  of  the  proceedings  by  the 
Secretary  of  War,  be  treated  in  the  same  manner  as  if  he  had  been  examined  prior  to 
promotion."     Sec.  32.  Act  of  February  2,  1901.     (31  Stats,  at  Large.  756.) 

Held  that  Sections  1206  and  1208,  Kev.  Sts.,  relating  to  the  examination  of  officers 


232  MILITARY  LAW. 

Organization;  Procedure. — "The  organization  of  boards  will  conform 
to  tliat  of  retiring  boards;  the  recorder  swearing  the  several  members,  in- 
cluding the  medical  officers,  faithfully  and  impartially  to  examine  and 
report  upon  the  officer  about  to  be  examined,  and  the  president  of  the 
board  then  swearing  the  recorder  to  the  faithful  performance  of  his  duty. 
Proceedings  will  be  made  separately  in  each  case.' 

"  Previously  to  the  swearing  of  the  board,  members  thereof  may  be 
challenged  for  cause  stated  to  the  board,  the  relevancy  and  validity  of  which 
shall  be  determined  by  the  full  board,  according  to  the  procedure  of  courts- 
martial  in  like  cases.  The  record  will  show  that  the  right  to  challenge  was 
accorded.  If  the  number  of  members  is  reduced  by  challenge  or  otherwise, 
the  board  will  adjourn,  and  report  the  facts  to  the  Adjutant-General,  through 
the  president  of  the  board,  for  the  action  of  the  War  Department.  Medical 
officers  will  not  take  part  in  the  professional  examination  except  in  the  cases 
of  assistant  surgeons.  They  will  make  the  necessary  physical  examination  of 
all  officers  and  report  their  opinion  in  writing  to  the  board.  All  questions 
relating  to  the  physical  condition  of  an  officer  shall  he  determined  by  the 
full  board.' 

"  If  anything  should  arise  during  tlie  examination  requiring  the  introduc- 
tion of  evidence,  the  inquiry  shall  proceed  upon  written  interrogatories  as 
far  as  possible,  the  board  determining  to  whom  questions  shall  be  forwarded. 
When,  in  the  opinion  of  the  board,  it  becomes  essential  to  take  oral  testi- 
monv,  the  facts  should  be  reported  to  the  War  Department  for  the  necessary 
orders  in  regard  to  witnesses  to  be  summoned  from  a  distance.  Witnesses 
examined  orally  will  be  sworn  by  the  recorder.' 

"  All  public  proceedings  will  be  in  the  presence  of  the  officer  under 
examination;  the  conclusions  reached  and  the  recommendations  entered  in 
each  case  will  be  regarded  as  confidential."  ' 

During  oral  and  practical  examinations  all  the  members  excepting  the 
medical  officers  will  be  present.' 

Written  examinations  may  be  conducted  in  tlie  presence  of  any  one 
member  of  the  board  or  in  that  of  the  recorder,  for  which  purpose  the 
board  may  be- divided  into  committees,  before  whom  the  examination  shall 
be  conducted  from  day  to  day  until  completed;  after  which  the  board  will 
reassemble  to  consider  its  finding.' 


of  the  Engineer  and  Ordnance  Corps  were  not  repealed  by  the  Act  of  October  1,  1890, 
but  remained  fully  in  force.*      Dig.  J.  A.  Gen.,  402,  par.  2. 

Held  that  as.si!^t!^nt  surgeons  of  the  rank  of  lieutenant  were  subject  to  exjimiiiatiou 
under  tlie  Act  of  October  1,  1890,  "to  provide  for  the  examination  of  certain  officers  of 
the  army  and  to  regulate  promotion  therein."     Ibid.,   par.   1. 

1  General  Orders.  No.  41,  A.  G.  O.,  1897. 

'  IMd.  Papers  should  be  given  out  so  that  everytliinir  in  the  iiands  of  the  officer 
being  examined  maybe  answered  before  a  recess  or  adjournment.  A  statement  show- 
ing that  such  was  the  procedure  during  the  written  examinations  will  be  embodied  ia 

•  See  G.  O.  128,  A.  G.  O.,  of  1890.,  par.  8. 


MILIIAKY    Hd.MiDS.  233 

The  terms  of  the  several  statutes  antliorizing  examinations  for  promotion 
give  precedence  to  the  pliysiiial  examination,  which  is  conducted  by  tlie 
medical  members  of  tlie  board  or  by  medical  oflicers  specially  detailed  for  the 
purpose.  The  physical  fitness  of  the  candidate  is  determined  by  the  board 
from  the  examination  so  made.  If  the  officer  undergoing  examination  is 
found  physically  disqualified  for  promotion,  his  examination  is  suspended.' 

the  record.  The  number  and  value  will  be  entered  on  the  margin  of  (juestions  used  for 
the  written  examination.  Oritjiiial  questions  prepared  by  the  bdard  will,  for  con- 
venience of  the  reviewing  authority,  indicate  where  answers  may  be  found.  G.  O.  46, 
A.  G.  O.  1897. 

To  secure  some  degree  of  uniformity  of  examination  of  line  officers,  boards  will  be 
furnisiied  by  the  Ajdutant-General  with  lists  of  questions,  with  values  attached. 
Boards  will  not,  however,  l)e  confined  to  the  questions  contained  in  these  lists,  and  are 
authorized  to  ask  any  (juestions,  selected  from  the  publications  recomniendcd  for 
study,  deemed  necessary  during  the  progress  of  the  oral,  written,  or  practical  examina- 
tions* Where  blackboard  or  other  illustrations  will  facilitate  the  oral  and  practical 
examinations,  their  use  is  authorized.  Examinations  will  be  conducted  in  a  sufficiently 
exhaustive  manner  to  determine  not  only  that  the  subject  is  thoroughly  comprehended, 
but  the  degree  of  proticiency  of  the  officer  being  examined,  and  until  the  board  is 
positively  satisfied  as  to  his  ability  to  impart  instruction  in  the  various  subjects.  In 
case  of  wnpropitious  weather,  practical  exercises  may  be  postponed  from  day  to  day,  but 
never  omitted  or  materially  curtailed.     Ibid. 

Whenever  the  oral  exumination  of  any  line  ofticer  is  unsatisfactory  in  any  subject 
the  board  will  at  once  proceed  with  a  written  examination  in  that  subject,  and  in  case 
the  officer  is  not  found  proficient  the  questions  and  answers  will  be  attached  to  the 
proceedings.     Ibid. 

Commanding  officers  of  posts  at  or  in  the  vicinity  of  which  boards  may  be  appointed 
to  meet  will,  without  further  instructions,  furnish,  ui)on  request  of  the  board,  such 
available  troops  and  material  as  may  be  required  by  boards  in  the  execution  of  this 
order.  When  it  is  not  practicable  to  obtain  the  reciuisite  troops  and  material  for  the 
complete  practical  examination  as  prescribed  for  artillery,  oral  and  written  examinations 
will  be  substituteii  by  the  board  for  the  portion  omitted.     Ibid. 

At  the  conclusion  of  his  examination  each  officer  will  sign  and  sidimit  a  certificate 
in  his  own  handwriting  to  the  ellect  that  he  has  not  received  assistance  from  any 
unauthorized  source,  or'commuuicated  or  transcribed  any  of  the  questions  or  problems 
submitted  for  his  use  during  the  examination,      [hid. 

In  written  examinations  a  numerical  value  will  be  given  to  each  question.  In  the 
oral  and  practical  examinations  a  numerical  value  will  be  given  to  each  subject.  Where 
botii  oral  and  practical  exandnations  are  required  in  the  same  subject  the  board  will 
allot  the  value  to  be  credited  to  each  part.     Ibid. 

'  Ibid.  Before  proceedingwith  the  physical  examination  the  officer  about  to  be  examined 

*  In  the  lists  prepared  for  the  use  of  boards,  valnes  of  5,  10,  and  15  havelieen  assigned  to  the  ques- 
tions. Conespoiidinfi  values  will  he  given  t)v  the  l)oard  to  any  original  questions.  It  is  assumed  that 
an  average  of  twenty  questions  will  be  asked  in  each  siit)ject.  but  the  t)oiircl  is  not  limited  to  that  num- 
ber. 'I'he  total  values  and  i-elalive  weights  of  all  subjects  for  which  questions  are  furnished  by  the 
Adiutaut-Ueneral  shall  be  as  follows  :  „  . 

Total.     Relative 
Subject.  Value.     Weight. 

I.  Adniinistration -"00  1 

II.  Drill  regulations -00  3 

III.  Exterior  ballistics,  etc "•^00  2 

IV.  Fire  discipline -W  2 

V.  Hippology ;^  2 

VI.  Military  field-engineernig *0U  •: 

VII.  Military  law   ..    "-'00  1 

VIII.  Military  topography 200  2 

IX.  Minor  tactics -00  3 

In  computing  the  examination,  find  the  percentage  in  the  various  subjects,  multiply  each  by  the 
relative  wreiglu  of  that  subject,  then  diviiie  the  sum  of  these  products  by  the  sum  of  the  relative 
weights  of  the  sul>jects  included  in  the  examination  of  each  officer. 

Tin- numerous  questions  embraced  in  each  list,  together  with  such  original  questii>nsas  maybe 
formulated  hy  the  Iv.ard.  admit  of  considerable  variiition.  and  make  it  possible  to  arrange  examina- 
tions radicallv  different  as  regards  particular  questions,  but  essenliallv  the  same  in  respect  to  scope  and 
chaiact-'i-.  If  i-  desirable  that  the  (inestions  be  s.-lected  indiscnminately  in  each  case,  to  the  end  that 
eai-b  officf  r  un<lfrgoing  examination  may  have  a  .^^►■reiit  arrangement  of  questions,  even  when  simul- 
taneous examinations  of  a  similar  character  are  being  c.>ndiicted.     Ibid. 


234  MILITARY  LAW. 

If,  on  the  other  hand,  he  is  found  to  be  physically  qualified,  the  profes- 
sional examination  is  entered  upon.  The  professional  examination  is  in 
part  theoretical,  in  part  practical,  and  is  in  part  based  upon  the  official 
record  of  service  of  the  officer  undergoing  examination.  The  examination 
is  required  to  be  conducted  as  far  as  possible  orally.  If  the  oral  examination 
be  unsatisfactory,  however,  the  examination  is  continued  in  writing,  in  the 
form  ot  questions  to  which  written  answers  are  required.  The  practical 
part  of  the  examination,  which  is  carried  forward  on  the  drill-ground,  con- 
sists in  the  execution  of  maneuvers,  the  giving  of  commands,  and  of  the 
solution  of  problems  in  minor  tactics.  The  record  of  service  of  the  candi- 
date, as  furnislied  by  the  War  Department,  is  also  considered  by  the  board. 
The  several  subjects  of  examination,  and  the  relative  weights  to  be  attached 
to  each,  are  set  forth  in  the  regulations  prescribed  by  the  President  and 
in  such  special  instructions  as  may  be  furnished  the  board  by  the  Secretary 
of  War.  The  order  of  examination  and  the  supervision  of  its  details, 
including  the  selection  of  questions  in  each  of  the  prescribed  subjects, 
together  with  the  weight  to  be  attached  to  particular  questions  and  the 
time  to  be  devoted  to  each  subject,  are  regulated  by  the  board.' 

Record. — The  record  or  report  of  the  examination,  which  is  similar  in 
form  to  the  record  of  a  court-martial,  is  kept  by  the  recorder  under  the 
supervision  of  the  board ;  a  separate  report  being  submitted  in  each  case. 
In  the  case  of  an  officer  found  qualified  for  promotion  the  record  will  set 
forth  the  proceedings  of  the  board,  to  which  will  be  attached  a  summary  of 
the  results  of  the  examination,  in  accordance  with  a  form  furnished  for  that 
purpose  by  the  War  Department.'  The  report  or  judgment  of  the  board  is 
that  the  officer  is,  or  is  not,  physically  and  professionally  qualified  for 
appointment  or  promotion. 

When  the  board  finds  an  officer  qualified  for  promotion  its  conclusion 
will  be  stated  in  the  following  form:  "The  board  is  of  the  opinion 
that has  the  physical,  moral,  and  professional  qualifications  to 

will  be  required  to  submit,  for  the  informntioii  of  tbe  board,  a  certificate  as  to  bis  phy- 
sical condition.  In  event  of  no  cause  for  disqualification  existing  tbe  certificate  will 
take  tbe  following  form  : 

"  I  certify,  to  tbe  best  of  my  knowledge  and  belief,  that  I  am  not  affected  with  any 
form  of  disease  or  disability  wbicb  will  interfere  with  tbe  perfoimance  of  tlie  duties  of 
tbe  grade  for  promotion  to  wbicli  1  am  undergoing  examination." 

Wben  tbe  board  finds  an  officer  pbysically  incapacitated  for  service  it  sball  conclude 
the  exannnation  by  finding  and  reporting  the  cause  wbicb,  in  its  juilgment,  has  pro- 
duced ids  disability,  and  whether  such  disability  was  contracted  in  the  line  of  duty. 

Any  officer  reported  by  a  retiring  board  as  incapacitated  by  reason  of  physical  dis- 
ability, the  result  of  an  incident  of  service,  shall,  if  tbe  proceedings  of  said  board  are 
appr<)ved  by  the  President,  be  regarded  as  physically  unfit  for  promotion  within  the 
meaninir  of  section  3  of  tbe  Act  of  October  1,  1890,  and  will  be  retired  with  the  rank  to 
whicli  ins  seniority  entitles  him  whenever  a  vacancy  occuis  that  otherwise  would  result 
in  his  promotion  on  the  active  list ;  provided  that  before  the  occurrence  of  such  vacancy 
he  shall  not  have  been  placed  on  the  retired  list.  General  Orders,  No.  41,  A.  G.  O.,  of 
1897. 

'  Ibid. 


MILITAUY  HOARDS.  235 

perform  efficiently  all  the  duties  of  the  grade  to  which  he  will  next  be 
eligible,  and  recommends  his  promotion  tliereto."  ' 

Where  an  otlicer  is  found  physically  disqualilied  the  record  will  be 
authenticated  by  all  the  members,  including  medical  officers  and  the 
recorder.  In  all  other  cases  the  medical  ofhcers  will  not  be  required  to  sign 
the  proceedings.  If  any  member  dissents  from  the  opinion  of  the  board, 
the  fact  of  such  dissent  will  be  set  forth  in  the  record.' 

Whenever  the  board  finds  an  oflficer  disqualified  for  promotion  from  any 
cause,  the  examination  papers  will  be  attached  to  the  proceedings  and  the 
record  will  contain  a  full  statement  of  the  case.  The  record  when  com- 
pleted is  forwarded  to  the  Adjutant-General  of  the  Army  for  the  action  of 
the  Secretary  of  War.' 

Approval  and  Confirmation. — If  the  report  in  the  case  of  a  particular 
officer  be  favorable  and  the  action  of  the  board  receives  the  approval  of 
the  Secretary  of  War,  the  officer  becomes  entitled  to  promotion  upon  the 
occurrence  of  a  proper  vacancy.  If  he  be  a  candidate  for  appointment 
merely,  he  becomes  eligible  to  selection  for  appointment.'  If  the  report  of 
the  board  be  unfavorable,  the  Act  of  October  1,  1890,  becomes  operative  in 
the  following  nuinner: 

(1)  If  the  officer  be  found  physically  disqualified  and  if  the  disability  is 
found  to  have  been  contracted  in  the  line  of  duty,  the  candidate  is  to  be 
retired,  as  of  the  date  when  his  promotion  accrues,  with  the  rank  of  the 
grade  to  which  he  would  have  been  promoted  had  he  been  found  physically 
qualified.' 

(2)  If  the  failure  to  qualify  be  due  to  professional  incapacity,  or  to 
physical  disability  not  contracted  in  the  line  of  duty,  the  officer  next  below 
him  in  rank  having  passed  such  examination  shall  receive  the  promotion, 
and  the  officer  becomes  entitled  to  a  re-examination  at  the  end  of  one  year, 
during  which  period  he  is  suspended  from  promotion;  and  if  upon  such 
re-examination  he  is  found  to  be  still  disqualified,  the  law  provides  that  he 
shall  be  honorably  discharged  from  the  military  service  with  one  year's  pay.* 

(3)  If  the  officer  was  appointed  from  civil  life,  or  was  an  officer  of 
volunteers  only,  or  of  the  militia,  called  into  the  service  of  the  United 
States  during  the  War  of  the  Rebellion,  and  is  found  to  be  disqualified  for 


'  Geiieml  Orders,  No.  41.  A.  G.  O  .  of  1897.  No  officer  will  be  passed  who  fails  to 
obtain  75  per  cent  in  esu-h  of  the  written,  oral,  and  practical  examinations.     Ibid. 

Graduiitinc  diplomas  of  llie  infantry  and  cavalry  school,  and  of  the  artillery  school, 
dated  not  more  than  five  years  anterior  to  examination,  shall  be  accepted  as  evidence  of 
proficiency,  e.xcept  for  pliysical  e.xaminalion.     Ibid. 

*  An  officer  of  the  line,  on  passing  the  examination  for  a  vacancy  in  the  Ordnance  or 
Signal  Departments,  does  not  become  an  ordnance  or  signal  officer  by  a  mere  transfer. 
He  must  be  appointed,  confirmed,  and  commissioned  in  the  usual  way.  Dig.  J.  A.  Gen., 
550,  par.  2.  The  examination  being  a  statutory  condition  precedent  to  such  appoint- 
ment. 

»  Section  3.  Act  of  October  1 ,  1890  (26  Stat,  at  Large,  562). 


236  MILITARY  LAW. 

promotion,  for  any  cause  not  incident  to  the  line  of  doty,  he  becomeB 
entitled  to  a  re-examination  at  the  end  of  one  year,  as  in  the  previous  case. 
If  he  fails  to  pass  such  re-examination,  he  is  to  be  placed  upon  the  retired 
list.' 

EETIRING    BOARDS. 

Constitution  and  Composition. — When  for  any  cause  an  officer  has 
become  physically  incapacitated  for  the  performance  of  his  duty,  the  law 
authorizes  the  Secretary  of  War,  under  the  direction  of  the  President,  to 
"  assemble  an  army  retiring  board  consisting  of  not  more  than  nine  nor  less 
than  five  officers,  two  fifths  of  whom  shall  be  selected  from  the  medical 
corps.  The  board,  excepting  the  officers  selected  from  the  medical  corps, 
shall  be  composed  as  far  as  may  be  of  seniors  in  rank  to  the  officer  whose 
disability  is  inquired  of."  ' 

These  boards  are  constituted  in  every  case  by  the  Secretary  of  War;  their 
composition,  subject  to  the  qualification  tliat,  save  for  "  the  officers  selected 
from  the  medical  corps,  the  board  shall  be  composed  as  far  as  may  be  of 
seniors  in  rank  to  the  officer  whose  disability  is  inquired  of,"  is  left  to  the 
discretion  of  the  convening  authority.^ 

Procedure. — It  is  the  duty  of  a  retiring  board  to  "  inquire  into  and 
determine  the  facts  touching  the  nature  and  occasion  of  the  disability  of  any 
officer  who  appears  to  be  incapable  of  performing  the  duties  of  his  office."  * 
To  enable  the  President  to  correctly  execute  the  laws  respecting  the- retire- 
ment of  commissioned  officers,  the  investigation  should  be  so  conducted  as 
to  determine  (1)  whether  the  alleged  disability  exists  to  such  an  extent  as 
to  render  the  officer  incapable  of  performing  the  duties  of  his  office,  and 
(2)  whether  such  disability  is  or  is  not  the  result  of  an  incident  of  service,* 

Retiring  boards  are  created  and  their  procedure  is  to  a  great  extent 
regulated  by  statute;   where  the  statutes  are  silent  in  respect  to  procedure 


>  Section  3.  Act  of  October  1,  1890  (26  Stat,  at  Large,  562). 

«  Section  1246,  Revised  Statutes. 

'  Ibid. 

*  The  investigation  of  a  retiring  board  is  not  affected  by  any  limitation  as  to  time,  as 
is  tliat  of  a  couit-martial.  Such  a  board  may  therefore  inquire  into  the  matter  of  a 
disability  however  long  since  it  may  liave  originated.     Dig.  J.  A.  Gen.,  664,  par.  2. 

^  A  retiring  board  may  iiiquiie  into  and  determine  the  facts  touching  the  nature  and 
occasion  of  the  disability  of  any  oliiccr  who  appears  to  be  incapable  of  performing  the 
duties  of  his  office,  and  shall  have  .such  powers  of  a  court-martial  and  of  a  court  of 
inquiry  as  may  be  necessary  for  that  purpose.     Section  1248,  Revised  Statutes. 

It  does  not  affect  the  authority  to  retire  under  Sec.  1251,  Rev.  Sts.,  that  the  incapa- 
city of  the  officer  may  have  been" found  to  have  resulted  from  a  wound  received  by  him 
•wllile  in  the  T)o;7/7i<<!e7- service  before  entering  the  regular  army.  Dig.  J.  A.  Gen.,  665, 
par.  4. 

Under  Sec.  1252,  Rev.  Sts  ,  an  officer  may,  in  the  discretion  of  the  President,  legally 
be  retired  by  reason  of  an  incapacity  resulting  from  liabitual  drunkenness.  Ibid., 
par.  5. 

Held  that  the  law— Sees.  1248  and  1249,  Rev.  Stats.— contemplated  an  existing  and 
not  a  purely  prospective  and  contingent  incapacity  ;  and  that  an  inquiry  into  »n  officer's 


MILITARY  BOARDS.  237 

they  are  governed  by  the  same  rules  as  other  military  tribunals.'  The  mem- 
bers are  sworn  to  the  honest  and  inip.irtial  discharge  of  their  duties.'  The 
investigation,  like  that  of  a  court  of  inquiry,  is  conducted  by  the  board  or, 
under  its  direction,  by  the  recorder.  ^J'he  law  confers  upon  an  officer 
appearing  before  a  retiring  board  the  right  to  "  a  full  and  fair  hearing"  ;  *  he 
is  tiierefore  entitled  to  the  privilege  of  being  represented  by  coun-sel,  and  of 
cross-examining  the  witnesses  summoned  to  testify  as  to  his  disability.  He 
may  also  introduce  testimony  in  rebuttal,  and  at  the  close  of  his  case  may 
submit  a  statement  respecting  the  character  and  causes  of  his  disability.' 

Record. — The  record,  which  is  kept  by  the  recorder  under  tlie  direction 
of  the  board,  should  show  affirmatively  that  the  board  has  jurisdiction  of  the 
case  investigated  by  it,  and  that  the  requirements  of  the  several  statutes 
regulating  its  procedure  have  been  fully  complied  with.  It  is  authenticated 
by  the  signatures  of  the  members  and  recorder,  and  is  transmitted  to  the 
convening  authority  for  the  action  of  the  President.  Like  the  records  of 
other  military  tribunals,  it  may  be  returned  by  the  review^iug  authority  for 
revision,  or  for  further  inquiry  as  to  the  nature  and  extent  of  the  disability 
alleged,  or  for  a  reconsideration  of  the  findings  of  the  board  upon  the  ques- 
tion of  incapacity. 

Approval  of  Finding. — The  finding  of  a  retiring  board  is  in  all  cases 
*'  in  the  nature  of  a  recommendation,  and  till  it  is  '  approved  by  the  Presi- 
dent '  no  retirement  can  be  ordered  thereupon."  * 

general  etliciciicy  could  be  pertinent  only  in  so  far  as  it  could  be  regarded  as  going  to 
show  thai  bis  inellicieucy,  if  found,  was  the  result  of  an  impairment  of  health.  Dig. 
J.  A.  Gen.,  6(58,  par.  16.     See,  also,  note  3,  post. 

'  The  provision  of  Sec.  12ol^,  Rev.  Stats.,  that  an  officer  sliall  not  "  be  ic/tolli/  retired 
from  the  service  without  a  full  and  fair  bearing  before  an  arm}'  retiring_  board  if,  upon 
duesummon.s,  be  demands  it,"  may  be  said  to  entitle  an  officer  subject  to  lie  thus  letired 
to  appear  before  the  board  (with  counsel  if  desired),  and  to  introduce  testimon}-  of  his 
own,  and  cro.«s-e.\amine  the  witnesses  examined  by  the  board,  including  the  medical 
members  of  the  board  who  may  have  taken  part  in  the  medical  examination  and  have 
stated  or  reported  to  the  board  the  result  of  the  same.  If  the  officer  does  not  elect  to 
appear  before  the  board  when  summoned,  he  waives  the  right  to  a  liearinir,  and  cannot 
properly  take  exception  to  a  conclusion  arrived  at  in  his  absence  *     IMd.,  665,   par.  7. 

'  Section  1247,  Revised  Statutes. 

»  Section  1253,  ibid.  See,  also,  note  1.  supra.  The  provision  of  Sec.  1248,  Rev. 
Stats.,  giving  to  a  retiring  board  such  jwwers  of  n  court-martial  and  court  of  inquiry  as 
may  be  necessary  to  enable  it  to  inquire  into  and  determine  a  question  of  allesred  "dis- 
ability, does  not  authorize  such  a  board  to  entertain  a  charge  of  military  offense  as 
such,  or  to  tri/ an  officer.     Dig  J.  A.  Gen.,  664,  par.  1. 

Z/eA/ that  the  "cause"  of  ••  inciipacity"  intended  in  Sec.  1249.  Rev.  Stats.,  was  a 
physical  cause  ;  tb.at  moral  obliquity  was  not  had  in  view  ;  and  that  the  matter  of  the 
tinancial  integrity  of  the  officer  was  beyond  the  jtirisdiction  of  the  board.  So  field  that 
the  board  was  not  authorized  to  recominend  the  retirement  of  an  officer  because  he  did 
not  pay  his  debts.  Held  also  that  the  inability  of  a  disbursing  officer  to  furnish  a  bond 
when  duly  required  to  do  so  was  not  sufficient  ground  for  his  retirement.  Ibid.,  667, 
par.  15. 

*  Dig.  .1.  A.  Gen.,  665,  par.  3. 

*  It  is  iR'ld  by  the  Attorney-General  (16  Opins..  20)  that  where  an  offloer  of  the  Navv  had  been 
retired  without  liavrns  had,  throtiK)i  no  fault  of  his  own.  the  full  and  fair  hearing  before  the  board  to 
which  he  was  entitled  l)y  Sec.  14.55.  Rev.  sts.,  and  the  vacancy  on  the  active  list  occasioned  bv  his 
retirement  had  not  been  filled,  the  President  would  he  authorizeil  to  revoke  the  order  of  the  retire- 
ment  so  that  the  olBcer  might  have  the  proper  hearing  before  final  action  in  his  case 


238  MILITARY  LAW. 

Sacli  finding,  however,  when  "  ajiproved  by  the  President  is  coudusive 
as  to  the  facts.  The  board  finds  the  facts  and  the  President  approves  or 
disapproves  the  finding,  but  tlie  law  does  not  empower  him  to  modify  the 
finding  or  to  substitute  a  different  one.  There  is  liere  a  judicial  power 
vested  in  the  two  and  not  in  the  President  acting  singly,  and  when  the 
power  has  been  once  fully  exercised  it  is  exhansted  as  to  the  case."  ' 

Action  in  respect  to  retirement  of  an  officer  is  completed  by  the  issuance 
of  an  order  by  the  President,  in  accordance  with  the  approved  action  of  the 
board,  placing  the  officer  on  the  retired  list  or  wholly  retiring  him  from 
service. 

Retired  officers  (except  as  otherwise  provided  by  law)  "do  7iot  hold 
public  office.'  They  are  in  fact  pensioners.  The  position  and  pay  given 
them  constitute  a  form  of  pension  the  rate  or  amount  of  which  is  deter- 
mined by  the  rank  held  by  them  at  the  date  of  tlieir  retirement.  They  ex- 
ercise no  functions  and  receive  no  emoluments  of  office,  but  are  pensioned 
for  past  faithful  services  or  disabilities  contracted  in  the  line  of  duty. ' '  Their 
condition  and  the  status  of  a  public  office  have  no  cliaracteristics  in  common.^ 

An  officer  "  wholly  retired  "  in  conformity  with  the  approved  proceedings 
of  a  retiring  board  ceases  to  be  an  officer  of  the  Army,  and  can  only  be 
restored  thereto  in  pursuance  of  an  appointment  by  the  President  with  the 
advice  and  consent  of  the  Senate.' 

BOARDS    OF    SURVEY. 

Jurisdiction. — A  board  of  survey  is  a  tribunal  created  by  the  Army 
Regulations,"  and  called  into  being  by  a  post  or  department  commander' 
for  the  purpose  of  investigating  questions  of  responsiljility  arising  in  connec- 
tion with  the  receipt,  issue,  or  distribution  of  public  property,  or  a  similar 
question  in  regard  to  its  use  or  p)reservation.  Not  being  created  by  statute, 
boards  of  survey  are  without  power  to  call  witnesses,  or  to  examine  them 
under  oath  should  they  voluntarily  appear.'     They  can  act  only  upon  evi- 

1  Dig.  .J.  A.  Gen.,  668,  par.  18.     See,  also,  U.  S.  vs.  Burchard,  125  U.  S.,  179. 

«  See  Sections  1359,  1260,  and  1860,  Revi.sed  Statutes,  and  the  Acts  of  .June  16,  1880, 
(21  Stut.  al  Large,  113,)  Aug.  6,  1894,  (28  ibid.,  235,)  July  31,  1894,  (28  ibid.,  205,)  and 
June  3.  1896  (29  ibid.,  205). 

2  Ibid.,  par.  19.  See,  also,  People  w.  Duane,  121  N.  Y.,  367  ;  20  Opiu.  Att.-Gea., 
686. 

*  Miller  vs.  U.  S.,  19  Ct.  Cls.,  338. 

*  See  paragraphs  708-723,  Army  Regulations  of  1895. 
«  See  par.  709,  A.  R.  1895. 

■"  A  board  of  survey  is  not  a  court  and  cannot  legally  exercise  the  powers  expressly 
vested  b\'  statute  in  courts-niarlial  or  courts  of  inrpiiry.  It  is  no  part  of  tlie  province  of 
a  board  of  survey  to  convict  of  crime.  Where  sucli  a  board,  in  ti.\ing  upon  an  officer  a 
pecuniary  responsibility  for  the  loss  of  certain  subsistence  stores,  expressed  incidentally 
the  opinion  tliat  the  same  had  been  stolen  by  a  certain  soldier,  held  that  this  opinion 
could  not  openite  as  a  finding  of  theft,  or  constitute  authority  for  tlie  stopping  against 
the  pay  of  tlie  soldier  of  the  value  of  the  stores.     Dig.  .J.  A.  Gen.,  179,  par.  1. 

There  is  no  statute  or  regulation  authorizing  the  swearing  of  a  board  of  survey  or  its 
members,  nor  indeed  is  it  necessary  or  suitable  that  such  a  body,  not  being  a  court, 


MILITARY  BOAIWS.  239 

dence  submitted  to  them  in  the  form  of  affidavits  by  the  parties  to  the 
investigation.  They  may  also  examine  the  contents  of  packages,  verify  tlieir 
correctness,  and  report  the  condition  of  stores  submitted  to  them  for  exami- 
nation.' Like  other  military  tribunals,  the  power  of  a  board  of  survey  is 
restricted  to  a  recommendation,  Ijased  upon  the  evidence  submitted  to  it,  in 
respect  to  tlie  question  of  responsibility  referred  to  it  for  examination. 

Constitution. — A  board  of  survey  will  be  called  by  the  commanding 
officer  of  the  post  or  station.  It  will  be  composed  of  three  officers,  exclusive 
of  the  commanding  officer  and  those  who  are  interested,  if  that  number  be 
present  for  duty;  otherwise  of  as  many  as  are  so  present,  exclusive  of  the 
commanding  and  interested  officers;  or  if  none  but  the  commanding  officer 
and  interested  officers  be  present  for  duty,  then  of  the  commanding  officer. 
When  only  the  responsible  or  interested  officer  is  present,  he  will  not  consti- 
tute himself  a  board  of  survey,  but  will  furnish  the  department  commander 
his  certificate  of  facts  and  circumstances,  supported  by  affidavits  of  enlisted 
men  or  others  who  are  cognizant  thereof.  Should  a  case  thus  presented  not 
be  considered  satisfactory,  or  in  a  case  in  which  only  interested  officers  with 
opposing  interests  are  present  for  duty  at  the  post,  the  department  com- 
mander may  make  the  necessary  investigation.' 

Procedure. — A  board  of  survey  must  fully  investigate  matters  submitted 
to  it.  It  will  call  for  all  evidence  attainable,  and  will  not  limit  its  inquiries 
to  proofs  or  statements  presented  by  parties  in  interest.  It  will  rigidly 
scrutinize  the  evidence,  especially  in  cases  of  alleged  theft  or  embezzlement, 
and  will  not  recommend  the  relief  of  officers  or  soldiers  from  responsibility 
unless  fully  satisfied  that  those  charged  with  the  care  of  property  have  per- 
formed their  whole  duty  in  regard  to  it.  In  no  case,  however,  will  the 
report  of  a  board  take  the  place  of  the  evidence  required  in  paragraph  682.' 

Evidence. — The  party  responsible  for  the  property  to  be  surveyed  will 
in  all  cases  furnish  the  original  certificates  or  affidavits  upon  which  he  relies 

should  be  specially  sworn.  Dig.  J.  A.  Gen.,  179,  par.  2.  Its  members  act  upou  the 
sanction  of  their  respective  oaths  of  olflce. 

'  For  e.vample,  it  investigates  and  determines  qnestions  involving  the  character, 
amount,  and  cause  of  damage  or  deficiency  ■vvhicli  piiblic  property  may  have  sus- 
tained in  transit,  store,  or  use,  and  wlilch  is  not  tlie  result  of  ordinary  wear  and  tear 
of  tlie  service,  and  reports  the  investigation  made,  its  opinions  thereon,  and  lixes 
responsibility  for  such  damage  or  deficiency  upon  the  proper  party.  It  makes  inven- 
tories of  property  ordered  to  be  abandoned  when  tlie  articles  have  not  been  enumerated 
in  the  orders  for  abandonment.  It  recommends  the  prices  at  which  damaged  clothing 
may  be  issued,  and  the  proportion  in  which  supplies  shall  be  issued  in  consequence  of 
damage  or  deterioration  that  renders  them,  at  the  usual  rate,  unequal  to  the  regulation 
allowance,  ti.\ing  in  each  instance  responsibility  for  actual  condition.  It  verifies  the 
discrepancy  between  invoices  and  the  actual  quantity  or  description  of  property  trans- 
ferred from  one  officer  to  another,  ti.xes  definitely  amounts  received  for  which  the 
receiving  officer  must  receipt,  and  ascertains,  as  far  as  possible,  where  and  how  the 
discrepancy  has  occurred.  It  inventories  and  reports  the  condition  of  property  in  the 
possession  of  deceased  officers  as  provided  for  in  paragraph  84. 

«  Par.  709,  A.  R.  1895. 

*  Par.  710,  ibid.     Army  Regulations  of  1895. 


210  MILITARY  LAW. 

to  relieve  him  from  responsibility,  and  the  number  of  duly  attested  copies 
thereof  required  by  a  board  of  survey  to  accompany  its  proceedings.' 

A  board  of  survey  has  no  power  to  administer  oaths  either  to  its  mem- 
bers or  to  witnesses  before  it,  but  it  should  hear  in  person  or  by  letter  all 
persons  concerned  in  the  subject-matter  before  it.' 

No  Power  to  Condemn. — "  A  board  of  survey  cannot  condemn  public 
property.  Its  action  is  purely  advisory.  It  is  called  for  the  purpose  of 
ascertaining-  and  reporting  facts,  submitting  opinions,  and  making  recom- 
mendations upon  questions  of  responsibility  which  may  arise  through  acci- 
dent, mistake,  or  neglect";'  the  power  to  condemn  being  vested,  in  ac- 
cordance with  Section  1241  of  the  Revised  Statutes,  in  officers  specially 
empowered  by  the  Secretary  of  War  for  tbat  purpose. 

Record.— The  proceedings  of  a  board  of  survey  will  be  prepared  in 
triplicate  and  signed  by  each  member  who  concurs  in  the  finding.  Should 
a  member  not  concur,  he  will  submit  a  minority  report,  to  be  embodied  in 
tlie  record  immediately  after  the  majority  report  and  signed  by  the  dissent- 
iuir  member.  The  proceedings  will  then  be  submitted  to  the  convening 
authority  for  approval  or  disapproval." 

Approval.  Confirmation,  etc.— When  the  value  of  the  property  submitted 
for  survey  or  the  loss  or  damage  to  be  inquired  into  does  not  exceed  five 
hundred  dollars  and  the  interested  officer  does  not  request  the  department 
commander's  action,  the  proceedings  of  the  board  will  be  considered  com- 
plete for  submission  as  a  property  voucher  upon  the  approval  of  the  con- 
vening authority.  One  copy  will  then  be  forwarded  to  department  head- 
quarters and  the  others  delivered  to  the  officer  accountable. ' 

Should  the  proceedings  be  disapproved  by  the  convening  authority,  or 
should  the  value  of  the  property  submitted  for  survey  or  the  loss  or  damage 
to  be  inquired  into  exceed  five  hundred  dollars,  or  whatever  the  amount 
involved,  should  the  officer  pecuniarily  interested  request  it,  the  proceedings 
in  triplicate  will  be  forwarded  to  the  department  commander  for  review,  and 
with  his  action  are  complete.  One  copy  will  then  be  filed  at  department 
headquarters  and  the  others  sent  to  the  accountable  officer.  But  all  pro- 
ceedings of  boards  of  survey,  whatever  their  nature  or  the  amounts  involved, 
are  subject  on  call  to  the  approval  or  disapproval  of  the  department  com- 
mander or  such  other  action  on  his  part  as  the  merits  of  the  case  or  the  in- 
terests of  the  Government  may  in  his  opinion  require.' 

^"  Par' 711,  A.  R.  1895.  .,        ,     .  ,  ,       , 

«  Par.  712,  A  R.  1S95.  See,  mIso.  note  7,  piisre  238  A  board  of  survey  lias  no  legal 
cap;iciiy  to  swear  persons  attending  t)cfor(;  it,  as  witnesses  ;  nor  is  it  within  the  province 
of  an  executive  order  to  authorize  such  a  hoard  to  administer  an  oath  either  to  itself  or  to 
a  witness.     Dig.  J.  A.  Gen  .  179,  par.  2.  .  ,  r,        •  i    ■ 

A  hoard  of  survey,  though  it  may  not  swear  witnesses,  may  receive  and  hie  with  its 
reiiort  affidavits  f)f  persons  cn<Tinzaiit  of  facts  under  investigation.  But  such  a  hoard 
wouhl  not  in  general  he  juslitied  in  chMrffing  a  soldier  with  the  value  of  public  property 
lost  or  daniaired.  upon  tlie  nthdavit  alone  of  an  interested  party— as,  for  example,  the 
officer  responsihle  in  law  for  such  iiroperty.     Ihid.,  \y.\r.  Z. 

'  Par.  713,  A.  R.  18!)')      ■■  Par.  714,  ihiil.      ">  Par.  715,  ibid.      *  Par.  716,  ihid. 


MUJTAHY   BOARDS.  24:1 

Properly  approved  proceedings  of  boards  of  survey  may  be  submitted  as 
vouchers  to  property  returns.  They  are  not  to  be  considered  as  conclusive 
until  accepted  by  the  Secretary  of  War.  Until  then  they  are  to  be  regarded 
simply  as  tiic  opinions  and  recoinmendatiuns  of  disinterested  otticers,  to  aid 
in  the  settlement  of  questions  of  accountability  between  the  (Jovernment  and 
the  individuals  concerned.  If,  on  examination  in  the  proper  bureau,  they 
e.Khibit  serious  errors  or  defects  either  of  investigation  or  of  finding,  they 
will  not  be  accepted  as  surticient  vouchers,  and  the  otticer  submitting  them 
will  be  duly  notified,  that  he  may  have  opportunity  to  nuike  explanations  or 
appeal  to  the  Secretary  of  War. ' 

Boards  of  Survey  in  Cases  of  Desertion. — Whenever  a  case  of  desertion 
occurs,  the  liegulations  require  that  a  board  of  survey  shall  "  be  called  to 
ascertain  whether  he  has  lost  or  abstracted  any  articles  of  Government 
property,  and  if  so,  to  determine  the  money  value  of  the  same.  The  value 
of  the  articles  thus  found  to  be  missing  will  be  charged  against  the  deserter 
on  the  next  muster  and  pay  roll  of  his  company,  which  will  be  accompanied 
by  a  copy  of  the  boanl's  report.  A  copy  of  so  much  of  the  proceedings  as 
relates  to  the  property  charged  on  any  roll  will  accompany  the  return  to 
which  tlie  property  pertains.  The  board  will  also  fully  investigate  the  cir- 
cumstances attending  desertion,  especially  the  causes  which  induced  it,  and 
make  a  separate  rei)ort  in  each  case  of  its  investigation  and  conclusions 
thereon,  which  will  be  transmitted  to  department  headquarters  through 
intermediate  channel 


3. 


'  Par.  718,  A.  li  l5!95.  Tlie  proceediugs  of  n  board  of  survey  which  recouuueuds 
thereliof  of  officers  and  eiili.stod  iiicii  froiiriespoiisibility  shouhi  not  be  approved  unless 
full  and  careful  inve>li;;:!itii)ii  and  convincing  proof  lo  sustain  the  boaid's  (indiiigs  ap- 
pear.     Par.  717,  A.   R/18!);"j. 

At  posts  or  stations  not  under  tlie  control  of  department  coininanders  conmianding 
otticers  will  be  governed  by  these  regulations  in  convening  boards  of  survey  and  acting 
upon  their  proceedings,  but  in  cases  referred  to  in  paragrapli  716  will  forward  the 
papers  to  the  chiefs  of  bureaus  to  whicli  the  property  pertains.     Ibid.,  par.  719. 

Separate  proceedings  of  boards  of  survey  will  be  bad  for  each  stall"  deparlnient  con- 
cerned.    Ihi(f.,  par.  720. 

Whenever  a  board  recommends  a  stoppage  against  an  enlisted  man  and  the  recom- 
mendation is  approved,  the  convening  authority  will  cause  a  copy  of  the  proceedings  to 
be  furnishe(i  to  the  company  conunander,  who  will  charge  the  amount  on  the  ne.vt 
muster  and  pay  rolls  of  the  conipanv.     Ibid.,  721. 

If  an  inspeclion  of  property  folhnvs  the  actioti  of  a  board  of  survey  thereon,  one  copy 
of  the  proceedings  will  accom'panv  the  inventory  and  inspection  report  whicii  is  trans- 
mitted asa  vouciier  to  tlie  officer's  "returns,  and  another,  witii  the  inventory  and  inspection 
report,  will  be  tiled  by  the  officer  with  his  retained  papers.     Ibid.,  par.  722. 

For  private  property  of  officers  or  enlisted  men  lost  or  destroyed  in  the  mililary 
service,  wiiliout  fault  or  neixlitrence  nn  the  part  of  the  claimaint,  "where  the  private 
properly  .so  lost  or  destroyed  was  shipped  on  board  an  unseaworthy  vessel  by  order  of 
any  officer  auihnri/.ed  to  i^ive  such  order  or  direct  such  sliipment,"  or  "  where  it  appears 
that  the  loss  or  destruction  of  iJie  private  property  of  llie  claimant  was  in  consequence  of 
his  having  given  his  attention  to  tlie  saving  of  the  property  belonging  to  theUinted  Slates 
which  was  in  danger  at  the  same  time  and  under  similar  circumstances,"  compensation 
may  be  niacie  under  the  provisions  of  the  .Act  of  t'ongre.ss  ajiproved  .Maich  3,  188o.* 
Proceedings  of  a  luiard  of  survey  will,  if  jiossiljle,  accompany  each  application  under  this 
Act,  showing  fuUv  the  circmnsiances  attending  the  lo.ss.      IMd  .  par.  72;!. 

«  Par.  115.  A.  K.  1895.     Department  commanders  will  carefully  consider  the  special 

*  23  Stat,  at  Large,  250. 


242  MILITARY  LA  W. 

The  purpose  in  convening  this  board  is  twofold :  (1)  To  ascertain  the 
exact  accountability  of  the  soldier  in  respect  to  the  Government  property  in 
his  possession.  This  with  a  view  to  fix  the  responsibility  therefor  and  to 
determine  whether,  in  addition  to  a  charge  of  desertion,  the  offender  shall  be 
charged  with  the  loss  or  abstraction  of  property.  (2)  To  ascertain  if 
possible  the  exact  cause  of  desertion  in  every  case.  This  with  a  view  to  dis- 
cover the  causes  of  desertion,  generally,  in  the  Army,  and  thus  to  enable  a 
resort  to  be  had  to  such  remedial  or  preventive  measures  as  will  be  calculated 
to  diminish  its  frequency  or  prevent  its  occurrence. 

Boards  to  Determine  the  Character  given  to  Discharged  Enlisted  Men. 
— The  law  requires  that  a  soldier,  when  honorably  discharged  at  expiration 
of  service,  or  for  other  cause  not  involving  a  status  of  dishonor,  shall  be 
furnished  with  a  formal  certificate  of  discharge,  signed  by  his  post  com- 
mander. This  instrument  contains  a  certificate  by  the  company  commander 
of  the  discharged  soldier  in  respect  to  the  character  borne  by  him  during 
the  period  of  his  enlistment. 

"  The  com2)auy  commander  will,  before  submitting  the  discharge  certifi- 
cate to  the  proper  officer  for  signature,  inform  the  soldier  of  the  character 
he  intends  to  give  him.  Should  the  soldier  feel  that  injustice  will  be  done 
him  thereby  he  may  at  once  apply  for  redress  to  the  post  commander,  who 
will  immediately  convene  a  board  of  officers  to  determine  the  facts  in  the 
case,  and  will  briefly  note  the  finding  of  the  board,  if  approved  by  him,  on 
the  discharge  certificate.  But  in  all  cases  where  the  company  commander 
deems  a  soldier's  services  unfaithful,  he  should  whenever  practicable  notify 
the  soldier,  at  least  thirty  days  prior  to  discharge,  of  the  character  which  he 
intends  to  give,  in  order  that  the  soldier  may  have  ample  opportunity  to 
apply  for  and  be  heard  before  the  board."  ' 

"  Tliis  board  may  be  called  upon  the  application  of  the  post  or  company 
commander,  and  if  by  the  former  the  department  commander  shall  appoint 
it.  The  character  given  by  the  company  commander,  also  the  character 
found  by  the  board,  will  be  noted  on  the  muster-roll." "" 

"  The  proceedings  of  the  board,  showing  all  the  facts  pertinent  to  the 
inquiry,  with  the  views  of  the  intermediate  commanders  indorsed  thereon, 
will  be  transmitted  for  the  consideration  and  action  of  the  War  Depart- 
ment."' 

reports  made  in  accordance  with  tiie  foregoing  paragraph,  and  on  or  before  the  1st  of 
August  of  each  year  forward  to  the  Adjutant-General  <jf  tiie  Army  reports  of  the  deser- 
tions which  have  occurred  within  their  commands  during  the  preceding  liscal  year,  with 
an  expression  of  their  views  as  to  the  causes  of  the  same  and  the  measures  vvliich  should 
be  taken  to  prevent  their  recurrence.  Commanders  of  posts  and  officers  in  charge  of 
recruiting  stations  will  take  pmrnpt  action  to  arrest  all  deserters  amenable  to  trial  and 
punishment      Par.  116.  A.  R.  1895. 

1  Par.  148,  A.  R.  1895.     See,  also,  the  Fourth  Article  of  War. 

•^  Ibid. 

^  Ibid.     The  cause  of  discharge  and  the  soldier's  age  at  its  date  will  be  stated  in  the 


MILITARY  BOARDS.  243 

Other  Forms  of  Discharge. — A  diifhonorable  discharge  is  a  discliurge 
ex{)resdly  imposed  us  a  punislimeut  by  sentencG.  SucIj  a  discharge  is  held 
also  to  be  involved  in  a  sentence  "  to  be  druninied  out  of  tlie  service."  It  is 
only  by  a  sentence  that  a  dishonorable  discharge  can  be  authorized.  Being 
li  pnni.shmenf,  it  cannot  be  prescribed  by  an  order.  In  a  case  of  this  dis- 
charge the  word  "  dishonorably  "  is  inserted  Ijefore  the  word  "  discharged  " 
in  the  certificate,  and  it  is  added  that  the  discharge  is  given  pursuant  to  the 
sentence  of  a  certain  general  court-martial,  specifying  it  by  reference  to  the 
order  by  which  it  was  constituted.' 


boily  of  the  discharge  certificate.  His  clniracter  will  be  accurately  described  at  the  bot- 
tom of  the  certificate,  but  if  not  sutlicic-iilly  good  to  allow  of  his  re-enlistment,  tiiat  por- 
tion of  the  certificate  relating  to  his  cluiiacler  will  be  cut  ott".  The  words  "Service  hon- 
est and  faithful  "  or  ".Service  not  honest  and  faithful,"  as  the  case  may  he,  will  be 
entered  under  "Remarks  "  in  the  military  record  on  the  back  of  the  discharge  certificate, 
and  will  also  be  noted  on  the  final  staiemenis.  Par.  148,  A.  Ji.  1«95.  Sei-,  also,  the 
Fourth  Article  of  War. 

The  final  statemciUs  required  by  par.  141,  A.  R.  189."),  to  be  furnished  with  the  dis- 
charge, constitute  no  part  of  the  discharge:  the  discharge  is  complete  without  them. 
Di!r.^T.  A.  Gen.,  359,  par.  17. 

"The  statement  of  "character"  appended  to  the  certificate  is  no  i)art  of  the  discharge. 
This  description  is  devolved  by  par.  148,  A.  R.  1895.  upon  the  commaudiugollicer  whose 
duty  it  may  be  to  make  out  the  discharge.  The  Army  Regulations  do  not  give  to  his 
superior  any  authority  over  tlie  subject.  (See  G.  O.  74,  H.  Q.  A.,  of  1881.)  Ibid., 
par.  18. 

'  Dig.  J.  A.  Gen.  361,  par.  25.  Hi;ld\\\&t  an  executed  dishonorable  discharge  was  an 
absolute  expulsion  from  the  Army,  and  as  such  did  not  merely  terminate  the  particular 
enlistment,  but  covered  all  previous  unexecuted  enlistments  of  the  soldier,  if  any.  Ihid., 
par.  26. 

A  third  species  of  discharge,  recently  recognized,  is  Dis<'hnrge  wiiho'it  honor. 
The  causes  and  occasions  for  and  upon  which  this  form  of  discharge  may  be  resorted 
to  are  defined  in  par.  151,  A.  R.  1895.  It  is  employed  in  cases  where  there  has  been  no 
sentence  adjudging  a  dishonorable  discharge,  but  where  the  dischaige  awarded  is 
induced  by  conduct  or  circumstances  not  honorable  to  the  soldier — wliere  his  status 
is  not  one  of  real  honor,  as  where  he  has  been  sentenced  to  a  term  of  imprisonment 
in  a  penitentiary  by  a  civil  court:  so  where  the  soldier  has  mutilated  himself  in  order 
to  obtain  a  discharge,  and  it  is  deemed  expedient  to  discharge  him  without  bringing 
him  to  trial.  Held  that  the  sununary  disc;haiges  given  during  the  late  war  for  causes 
tainting  their  character  were  of  this' kind,  although  not  known  by  the  name  of  "dis- 
charges without  honor,"  or  by  any  other  particular  name.  (Sometimes  this  discharge  is 
given  upon  the  remission  of  a  sentence.  See  S.  O.  169,  A.  G.  O.,  of  July  26,  1893.) 
Ibid.,  par.  30. 

The  ground  for  this  discharge  set  forth  in  par.  151.  A.  R.— di.squalification  for  ser- 
vice, physically  or  in  character,  Hirough  his  own  fault — is  a  disqualification  resulting 
from  the  acts  and  habits  of  the  soldier,  and  cannot  fairly  be  established  by  previous 
convictions.     Ibid..  362,  par.  31. 

Under  sec.  4  of  the  Act  of  .June  16,  1890.  the  President  may.  in  his  discretion,  per- 
mit a  .soldier  to  jmrchni^e  his  discharge  even  if  his  service  h;is  iiot  been  faithful.  This 
section  does  not— as  do  sec.  1  (relating  to  pay)  and  sec.  2  (relating  to  discharge  and 
furlough)— prescribe  as  a  condition  to  receiving  its  benefits  that  the  antecedent  service 
shall  have  beea  ' '  faithful. "    Ibid.,  par.  33.     See,  also,  the  Fourth  Article  of  "War. 


CHAPTEE   XV. 

EVIDENCE. 


The  Judicial  Ascertainment  of  Facts. — The  methods  which  are  employed 
hv  coiirts  of  justice  to  ascertain  the  facts — tliat  is,  the  truth — respecting  any 
])ast  transaction  closely  resemble  those  resorted  to  by  an  individual  for  a 
similar  purpose.  If  A  desires  to  ascertain  whether  a  particular  act  did  or 
did  not  take  place,  he  addresses  himself  to  those  who  were  in  a  situation  to 
witness  the  occurrence  itself,  and  so  endeavors  to  obtain  from  each  person 
present  his  version  of  the  occurrence.  PVom  the  testimony  thus  obtained 
he  forms  his  conclusion  as  to  whether  or  not  the  act  took  place.  In  the 
course  of  his  investigation,  however,  he  finds  that  all  who  were  present  and 
witnessed  the  occurrence  as  bystanders  do  not  give  testimony  of  equal 
importance  or  value.  Some,  having  greater  powers  of  observation  or  better 
memories  than  others,  give  in  consequence  more  valuable  testimony. 
Some  of  the  witnesses  being  children  or  persons  of  weak  or  unsound  mind, 
are  without  the  requisite  mental  capacity  to  observe  facts  or  to  appre- 
ciate their  relations  to  each  other;  others,  by  reason  of  their  bad  character, 
are  not  regarded  as  Avorthy  of  belief  by  their  fellow  citizens;  still  others  were 
insane  or  quite  under  the  influence  of  intoxicating  liquor  at  the  time  of  the 
occurrence,  and  so  were  incapacitated  from  ol)serving.  A  therefore  rejects 
some  of  the  statements  as  entirely  untrustworthy;  to  others  he  attaches 
weiglit  in  proportion  to  their  worthiness  of  belief,  and  so  endeavors  to  reach 
a  conclusion  as  to  the  truth  of  the  occurrence  or  event  which  was  the  orig- 
inal subject  of  his  inquiry. 

Evidence. — The  term  evidence  is  in  general  applied  to  that  which 
tends  to  render  evident  or  clear.'  In  its  legal  acceptation  the  term  applies 
to  and  includes  all  matters  of  fact  which  a  court  of  justice  permits  to  be  sub- 
mitted to  the  jury,  in  the  trial  of  a  case,  witli  a  view  to  prove  or  disprove 
the  existence  of  a  fact  in  issue.' 


'  I.  Best  on  Evidence,  §  11.  . 

'  The  Latin  evidentm  iuul  the  F'reiich  eridinre  arc  commonly  restricted  by  foreign 
jurists  to  those  cases  where  conviction  is  produced  hythe  testimony  of  tlie  senses:  that 
which  is  known  as  evidence  to  the  Ensrlish  hiw  is  discussed  by  the  canonists  and  civil- 
ians under  the  head  probatio,  and  by  French  writers  under  that  of  preuve.     Ibid.,  %\\, 

note. 

244 


EVIDENCE.  245 

How  Obtained.  —  lOvideuce  is  obtiiined  jjy  tlie  application  of  a  system  of 
rules,  partly  statutory  and  in  part  derived  from  the  common  law,  called 
rule.H  of  evidence .  The  facts  so  presented  are  derived  from  the  testbnony  of 
loitnesses  wlio  have  observed  them,  or  from  documents  relating  to  the  case, 
the  production  of  which  has  been  comjielled  by  due  jirocess  of  law.' 

Witnesses. —  Wihtesses  are  jjcrsons  who  a])])ear  in  court  in  obedience  to 
ap])ro})riate  sumtnons  and  there  rel:it(\  under  the  sanction  of  an  oath,  suoli 
facts  })ertaining  to  a  particular  case  as  they  have  become  cognizant  of 
through  the  medium  of  their  .>enses.'^ 

Purpose  of  Rules  of  Evidence. — The  rules  of  evidence  have  to  do  with 
determining  what  is  called  the  competency  of  witnesses;  that  is,  of  deciding 
whether  a  particular  person  shall  be  permitted  to  testify  at  all;  and  with  the 
exclusion  of  certain  testimony  from  consideration  of  the  court  upon  tlie 
ground  that  it  is  likely  to  mislead  and  confuse,  rather  than  to  make  clear, 
the  issue  referred  to  it  for  trial.  Tliey  also  determine  to  a  certain  extent 
the  credibility  of  witnesses,  or  the  weight  that  is  to  be  attached  to  their 
testimonv. 

'  WITNESSES. 

Duty  of  Witness  to  Testify — Appearance. — The  giving  of  testimony  iu 
an  aetion  at  law  is  an  important  public  duty,  due  from  the  individual  to  the 
State  of  which  he  is  a  citizen.  In  a  criminal  case  every  person  upon  whom 
a  subpoena  has  been  duly  served  must  appear  and  testify,  or  render  himself 
liable  to  punishment  for  contempt.' 

Appearance  of  Military  Persons. — The  attendance  of  military  persons  is 
secured  by  the  issuance  of  orders  from  the  proper  military  authority.  These 
orders  are  based  upon  the  formal  request  of  the  court  or  the  judge-advocate, 
and  a  failure  to  appear  in  obedience  thereto  constitutes,  if  unexplained,  the 
offense  of  disobedience  of  orders,  and  is  punishable  as  such.  Where  the 
witness  is  stationed  at  the  post  or  place  at  which  the  court  sits,  his  attend- 
ance is  obtained  by  a  formtil  notification  to  appear  signed  by  the  judge- 
advocate.  To  avoid  misunderstanding,  such  notification  should  reach  the 
witness  through  the  proper  military  channels. 

Appearance  of  Civilians. — To  obtain  the  attendance  of  a  civilian  as  a 
witness  a  formal  subpa-na  *  is  issued  by  the  judge-advocate,  in  the  name  of 
the  President,  directing  him  to  appear  m  court  as  a  witness  on  a  day  named. 
If  the  witness  has  in  his  possession  a  book,   paper,   or  other  document 

'  According  to  Professor  Greeiileaf,  llie  term  inchidcs  "  all  tlie  means  by  which  any 
matter  of  fnci  the  trulh  of  which  is  suhniittcil  to  inve.stigation  is  establisheii  or  dis- 
proved."    Greeiile:if  on  Evideiiee,  ^  1. 

»  U.  S.  vs.  Wood    14  Pet..  445;  Barker  vs.  Coit.  1  Root  (Conn.),  225. 

=•1.   Greenleif,  i;^  311-319.  and  cases  cited:  U.  S   Constitution.  Amendment  G. 

••  This  writ  is  known  as  the  suhixena  ad  teatificnuduvi,  to  distinguish  it  from  the  writs 
next  to  be  described. 


24:6  MILITARY  LAW. 

material  to  a  cause  as  uii  instruinoiit  of  evidence,  a  writ  called  a  subpoena 
duces  tecum '  issues  commaudiug  him  to  appear  in  court  on  a  day  certain, 
and  to  have  with  him  the  particular  paper  or  document  named  and  described 
in  the  subpoena.  If  the  witness  be  a  prisoner  in  jail,  his  presence  is  secured 
by  the  issue  of  a  peculiar  form  of  the  writ  of  habeas  corpus  called  habeas 
corpus  ad  testiiicandum.'' 

Service  of  Process.— Writs  of  subpoena  for  the  attendance  of  civilian  wit- 
nesses are  usually  issued  in  duplicate.'  They  are  issued  by  the  judge- 
advocate  in  the  name  of  the  Presideni  of  the  United  States,  and  are 
addressed  to  the  witness  whose  attendance  is  desired.  Being  in  the  nature 
of  a  command  to  the  witness  himself  and  not,  as  is  the  case  with  judicial 
process  generally,  a  command  to  the  officer  charged  with  its  service,'  a 
subpwna  may  legally  be  served  by  any  competent  person,  civil  or  military, 
but  will  in  general  be  preferably  served  by  an  officer  or  a  non-commissioned 
officer  of  the  Army.'  This  for  the  reason  that  none  of  the  appropriations 
for  the  support  of  "the  military  establishment  are  applicable  to  the  payment 
of  fees  or  expenses  incurred  in  connection  with  the  service  of  process.' 

Method  of  Service.— To  constitute  service,  the  original  is  shown  to  the 
witness,  or,  if  two  copies  are  furnished,  the  duplicate  is  delivered  to  him; 
a  certificate  of  service  is  then  indorsed  upon  the  original  writ,  which  is 
returned  to  the  judge-advocate  by  the  officer  or  other  person  charged  with 
its  service.  The  personal  service  thus  described  constitutes  the  legal  service 
upon  wdiich  process  of  attachment  may  be  based  should  the  witness  fail  to 

1  It  has  been  decided  in  a  number  of  cases  Ihat  tlie  production  of  documentary  evi- 
dence only  can  be  compelled  by  the  issue  of  this  writ,  and  that  ils  etl'ect  does  not  extend 
to  the  production  of  objects,  or  thinirs,  properly  described  as  real  evidence. 

2  As  courts-martial  have  no  power  to  issue  any  form  of  the  writ  of  habeas  corpus,  this 
metliod  of  securing  the  attendance  of  a  witness  in  coutinement  or  under  restraint  is  not 
available  to  military  tribunals. 

2  For  form  of  subpoena,  see  Appendix. 

■*I.  Greeuleaf,  i^  315;  24  Am.  and  Eng.  Encyc.  of  Law,  165,  note  4. 

^big.  J.  A.  Gen.,  753,  par.  13.  A  summons  may  legally  be  served  eitlier  by  a  mili- 
tary or  a  civil  person,  but  will  in  general  preferably  be  served  by  an  oflicer  or  a  non-com- 
missioned  ollicer  of  the  Army. 

A  judge-acivocate  or  a  commanding  or  other  officer  to  whom  a  summons  is  sent  for 
service  wfll  not  be  authorized,  by  employing  for  the  purpose  a  U.  S.  marshal  or  deputy 
marshal  cr  other  civil  official,  to  commit  the  United  States  to  the  payment  of  fees  to  such 
official.  Tiie  action,  however,  of  a  judge-advocate  in  employing  a  deputy  marshal  to 
serve  a  summons,  where  apparently  the  service  could  not  otherwise  be  so  eftVctually  or 
economically  made,  has  in  a  few  cases  been  so  far  ratified  by  tlie  Secretary  of  War  as  to 
allow,  out  of  the  appropriation  for  army  contingencies,  the  payment  of  a  small  and  rea- 
sonable account  of  charges  rendered  by  such  official.     Ibid. 

''There  is  no  fee  or  compensation  established  or  authorized  to  be  paid,  by  statute 
or  regulation,  for  the  service  of  subpoenas  for  the  attendance  of  witnesses  before  civil 
court's.  Neither  a  commanding  ollicer  nor  a  judge-advocate  is  authorized  to  employ  a 
civil  official  or  any  civilian  for  such  service,  or  to  commit  the  United  States  to  the  pay- 
ment of  any  compensation  to  su(;h  a  person.  IJut  in  a  case  where  the  employment  of  a 
civilian  for  such  purpose  liad  been  resorted  to,  and  it  clearly  appeared  that  to  employ 
him  was  the  most  economical  as  well  as  effectual  course  open  to  the  officer,  advisedlhut 
his  reasonable  compensation  be  paid  out  of  the  appropriation  for  contingencies  of  the 
Army.     Ibid.,  760,  par.  39. 


EVIDENCE.  247 

appear  in  obedience  to  the  summons.'  In  the  summoning  of  witnesses 
before  courts-martial,  wliat  is  called  constructive  service,  that  is,  service  by 
publication  or  in  any  other  manner  than  V>y  actual  personal  delivery  of 
process,  is  not  f)ermitted;  nor  is  it  regarded  as  suilicient  service  upon  which 
to  base  a  writ  of  attachment.  Personal  service  may  be  waived,  however,  by 
the  witness,  and  is  so  held  to  be  waived  when  he  ajjpears  in  obedience  to  any 
summons  or  notification  less  formal  than  that  above  described. 

Operation  of  the  Writ. — The  power  to  issue  writs  of  subpoena  is  vested 
by  statute  not  in  tlie  court-martial  itself  but  in  the  judge-advocate,  wlio  is 
not  subject  to  the  territorial  restrictions  in  respect  to  their  issue  which  are 
imposed  by  law  upon  the  civil  courts  of  the  United  States.  A  court-martial 
subpoena  will  therefore  run  anywhere  within  the  territorial  jurisdiction  of 
the  United  States,^  and  is  operative  beyond  such  territorial  limits  to  the 
extent  of  conferring  authority  for  the  attendance  of  the  witness  and  the 
payment  of  his  fees.  A  writ  of  attachment,  however,  will  not  run  beyond 
the  territorial  limits  of  the  State,  Territory,  or  District  in  which  the  court 
may  be  ordered  to  sit.' 

Time  of  Service. — The  service  of  a  subpama  upon  a  witness  ought 
always  to  be  nuide  within  a  reasonable  time  before  trial,  to  enable  him  to 
put  his  affairs  in  such  order  that  his  attendance  upon  the  court  may  be  as 
little  detrimental  as  possible  to  his  interest.  On  this  principle,  a  summons 
in  the  morning  to  attend  in  the  afternoon  of  the  same  day  has  been  held 
insufficient,  though  the  witness  lived  in  tlie  same  town  and  very  near  the 
place  of  trial.  In  the  United  States  the  time  is  generally  fixed  by  statute, 
requiring  the  allowance  of  one  day  for  a  certain  number  of  miles  of  dis- 
tance from  the  residence  of  the  witness  to  the  place  of  trial;  and  this  is 
usually  twenty  miles.  But  at  least  one  day's  notice  is  deemed  necessary, 
however  inconsiderable  the  distance  may  be.' 

'  Section  1202,  Revised  Statutes. 

'  At  whatever  place  a  court-martial  may  be  assembled,  a  summons  for  the  attend- 
ance before  it  as  a  wituess  inaj'  legally  be  issued  to  and  served  upon  a  person  civil  or 
military  in  any  other  part  of  tlie  federal  domain.     Dig.  J.  A.  Gen.,  752,  par.  12. 

»  Section  1202,  Revised  Statutes. 

*  The  allowances  and  per  diem  compensation  of  civilians siibpwuaed  and  attending  as 
■witnesses  before  courts-marlial  are  fi.xed  by  paragraphs  962-965,  A.  R..  1895.  Such  wit- 
nesses are  entitled  to  these  fees  though  they  may  not  be  called  upon  to  testify:  it  is  only 
essential  that  they  duly  attend.  Civilian  employees  of  the  United  States  are  not  entitled 
to  the  per  diem  allowance  specified  in  par.  963  A.  R.,  of  1895,  but  only  to  the  reimburse- 
ment of  the  expenses  specified  in  par.  962.     Dig.  J.  A.  Gen.,  759.  par.  34. 

The  compensation  allowed  by  the  Secretary  of  War  for  witnesses  simimoned  as 
experts  in  handwriting  before  a  court-martial  (see  Smith  vs.  U.  S..  24  Ct.  CI.,  209).  luld 
payable  out  of  the  annual  appropriation  "for  compensation  of  witnesses  attending 
upon  courts-martial  and  courts  of  inquiry."     Ibid.,  par.  85. 

Held  that  duly  attending  by  a  civilian  witness  before  a  duly  authorized  official  to  give 
a  deposition  to  be  u.sed  in  evidence  on  a  military  trial  was  to  he  reganled  as  practically 
equivalent  to  attending  a  court-martial,  and  that  the  deponent  was  entitled  to  be  paid 
the  usual  allowances  (t''-.  the  same  as  those  of  witnesses  appearing  before  the  court) 
out  of  the  regular  appropriation  for  the  "compensation  of  witnesses  attending  before 
courts-martial,"  etc.  Jbid.,  par.  36,  See.  also,  Appendix,  and  Circ.  No.  9,  H7  Q.  A., 
1883  ;  Manual  for  Courts-martial,  pp.  38.  39. 


248  MILITARY  LAW. 

THE    WRIT    OF    ATTACHMENT. 

Nature  and  Purpose. — When  a  person  lias  been  lawfully  suninioued  to 
appear  in  court  on  a  day  certain,  as  a  witness  in  a  case  there  pending,  and 
fails  to  appear  in  obedience  to  such  summons,  he  is  said  to  be  in  contempt 
of  the  court  from  which  the  subpoena  issued,  and  such  court  is  authorized, 
by  the  issue  of  some  form  of  compulsory  process,  to  compel  his  attendance. 
The  process  usually  resorted  to  for  this  purpose  is  called  the  ivnt  of  attach- 
ment^ which  authorizes  the  officer  charged  with  its  execution  to  arrest  the 
person  named  and  compel  his  appearance  in  court,  using  such  force  as  may 
be  necessary  to  accomplish  that  purpose.  The  courts  of  the  several  States 
and  the  civil  courts  of  the  United  States  are  each  authorized,  by  appropriate 
enactments,  to  make  use  of  compulsory  process  to  obtain  the  attendance  of 
witnesses  who  have  failed  to  appear  in  o])edience  to  lawful  summons. 

Application  in  Court-martial  Procedure. — Section  l-^02  of  the  Revised 
Statutes  *  confers  a  similar  power  upon  the  judge-advocates  of  courts-martial. 
The  terms  of  the  statute  are  peculiar  in  that  the  power  is  vested  exclusively 
and  independently  in  the  judge-advocate  and  cannot  be  exercised  by  the 
court.  The  writ  of  attachment  is,  therefore,  not  a  writ  or  process  of  the 
court,  but  simply  a  compulsory  instrumentality  placed  at  the  disposition  of 
the  judge-advocate,   as   the   prosecuting   official    representing   the   United 

States.' 

Limitation  on  the  Power  to  Issue  Writs  of  Attachment. — It  has  been 
seen  that  the  writ  of  subpoena  lawfully  issued  by  the  judge-advocate  of  a 
court-martial  would  have  operation  anywhere  within  the  territorial  jurisdic- 
tion of  the  United  States."  The  power  of  the  judge-advocate  to  issue  writs 
of  attachment  is  much  less  extensive,  being  restricted  by  the  express  terms 
of  the  statute  conferring  it'  to  "  the  State,  Territory,  or  District  in  which 
such   court   shall   be  ordered  to  sit."     Within  such  State,  Territory,   or 


'  Every  judge-advocate  of  a  court-martiul  shall  have  power  lo  issue  the  like  process 
to  compel  witnesses  to  appear  and  testify  which  courts  of  criminal  jurisdiction  within 
the  Stale,  Territory,  or  District  where  such  military  courts  shall  be  ordered  to  sit  may 
lawfully  issue.     Section  1202,  Rev.  Stat.;  Act  of  March  3,  1863  (12  Slat,  at  Large,  754). 

^  Dig.  .J.  A..  Gen.,  757,  par.  27.  The  authority  to  issue  process  to  compel  civilian  wit- 
nesses to  appear  and'te.stify  is  vested,  hy  Sec.  1202,  Rev.  Sts.,  in  "every  judge-advocate 
of  a  court-marlial."  A  judge-advocate  of  an  inferior  court  would  thus  be  empowered 
for  the  purpose  eqyially  with  the  judge  advocate  of  a  general  court.  The  present  statute, 
however,  (unlike  the  original  form,)  does  not  extend  the  authority  to  recorders  of  courts 
of  inquiry.  Ibid.  Or  to  the  summary  court.  Manual  for  Courts-martial,  77.  Article 
42  of  the  Rules  for  the  Government  of  the  Navy  contains  the  requirement  that  "any 
person"  who  "refu.ses  to  give  evidence"  may  be  i)unished  by  tlie  court-martial  by 
imprisonment  "  for  any  time  not  exceeding  two  months."     Sec.  1624,  Rev.  Stat. 

2  See  the  article,  ante,  entitled  Service  of  Procens. 

*  See  note  1,  supra.  Sec.  1202,  Rev.  Sts.,  authorizes  only  judge-advocates  of  courts- 
martial  to  i.ssue  process  to  compel  the  attendance  of  witnesses.  The  court  itself,  general 
or  inferior,  has  no  such  power.     Dig.  J.  A.  Gen.,  463,  par.  33. 

Held  that  the  stattite  could  not  properly  be  construed  as  authorizing  the  issue  of  an 
attachment  to  compel  a  witness  to  attend  before  a  commissioner  or  other  person  and 
give  his  deposition.     Ibid.,  757,  par.  29. 


EVIDENCE.  249 

District,  therefore,  u  witness  may,  by  the  issue  of  a  writ  of  attachment,  be 
compelled  to  appear  in  court;  without  such  territorial  limits,  however,  the 
statute  above  cited  would  seem  to  vest  no  power  in  the  judge-advocate  to 
compel  such  appearance  in  court. 

Service  of  Process  of  Attachment. — To  authori;;e  a  resort  to  an  attach- 
ment there  must  have  been  a  formal  summons,  duly  issued  and  served  upon 
tiie  witness  and  not  complied  with.'  The  judge-advocate  is  authorized  only 
to  initiate  the  process  of  attachment.  The  statute  does  not  specify  by  whom 
it  shall  be  executed,  and  the  judge-advocate  is  not  authorized  to  command 
any  officer  or  person  to  serve  it;  nor  has  the  court  any  such  power.' 

Whenever,  therefore,  it  becomes  necessary  to  enforce  the  attendance  of 
a  witness,  the  judge-advocate  will  issue  a  warrant  of  attachment,'  directing 
and  delivering  it  for  execution  to  an  officer  designated  by  the  department 
commander  for  the  purpose.'  He  will  also  deliver  to  this  officer  the 
subpoena,  indorsed  with  affidavit  of  service  (to  be  returned  when  the  warrant 
is  executed),  and  a  certided  copy  of  the  order  appointing  the  court-martial.* 

In  executing  such  process  it  is  lawful  to  use  only  such  force  as  may  be 
necessary  to  bring  the  witness  before  the  court.'  Whenever  force  is  actually 
required,  the  post  commander  nearest  witness'  residence  will  furnish  a 
military  detail  sufficient  to  execute  the  process.' 

Although  the  power  to  issue  process  of  attachment  is  expressly  conferred 
by  statute,  some  special  precautions  are  necessary  in  its  exercise,  to  which 
attention  will  now  be  drawn.  The  effect  of  the  issue  and  service  of  the  writ 
is  to  place  restraints  upon  individual  action,  and  so  for  the  time  being  to 
deprive  an  individual  of  his  liberty.  The  restraint  thus  imposed  may  be 
inquired  into  by  an  issue  of  the  writ  of  habeas  corpus,  and  the  officer  or 
other  person  to  whom  the  writ  has  been  entrusted  for  service  should  be  pro- 
vided with  such  papers  as  will  enable  him  to  make  full  and  sufficient  return 
to  the  writ  in  the  event  of  its  being  served  upon  him  in  behalf  of  the  wntness 
in  his  custody.  For  this  purpose  the  following  papers,  in  such  form  as  to 
enable  them  to  be  used  as  instruments  of  evidence,  are  absolutely  necessary: 
(1)  the  order  convening  the  court  for  the  trial  of  the  accused;  (3)  a  copy 
of  the  charges  and  specitications,  as  referred  for  trial;    (3)   the  original 

'  Dig.  J.  A.  Gen..  757.  par.  28. 

'  Ihid  ,  46;^.  par.  34. 

'  MuiuKil  for  Courts-martial,  34,  par.  6. 

*  Ibid.:  id.,  im,  p-ir.  32  :  par,  923,  A.  R.  1895.  A  judgeadvocnte  cannot  properly- 
direct  (in  attachment  to  a  U.  S.  marshal  or  deputy  marshal  or  other  civil  official  Dig. 
758   p  ir.  :S2. 

^  M;inual,  etc.,  34   par.  5. 

'  Dig.  .J.  A.  Gen.,  758,  par.  32. 

'  Manual,  etc.,  34,  par.  G;  par.  923.  A.  R.  1895.  A  judge  advocate,  having  attached 
a  civilian  witness  and  had  him  brought  to  the  place  of  the  court,  detained  him  one  hour 
in  the  guardhouse  before  bringing  him  before  the  court.  For  this  he  was  indicted  (for 
false  imprisonment)  in  a  U.  S.  District  Court  in  Texas.  Held  that  his  action  was  war- 
ranted under  Sec.  1202,  R.  S..  and  advised  that  the  Attornev-General  be  requested  to 
cause  the  prosecution  to  be  discontinued.     Dig.  J.  A.  Gen.,  4G3,  par.  35. 


250  MILITARY  LAW. 

subiioena,  with  the  affidavits  and  certificates  of  service;  (4)  evidence,  in  the 
form  of  an  affidavit  from  tlie  judge-advocate,  that  the  party  has  failed  and 
neglected  to  appear  although  sufficient  time  has  elapsed,  that  he  is  a  material 
and  necessary  witness,  and  that  no  valid  excuse  has  been  offered  for  such 
failure  to  appear.' 

THE    RULES    OF    EVIDEXCE. 

The  rules  of  evidence  which  prevail  in  the  federal  courts  are  those  pro- 
vided for  the  guidance  of  those  tribunals  by  successive  enactments  of 
Congress.  They  consist  in  general  of  the  rules  of  the  common  law  as  they 
existed  in  the  several  States  at  the  adoption  of  the  Federal  Constitution  in 
1789,   as   modified  from   time   to  time  by  subsequent  Acts  of    Congress/ 

'  Upon  the  subject  of  the  cxeculim  of  process  of  attachment  in  military  cases,  see 
XII  Opiu.  AU.-Gen.,  501;  also  the  directious — based  upon  the  same— of  G.  O.  93,  H.  Q. 
A.,  1868.     Dig.  J.  A.  Gen.,  3.j8,  par   32.  note  2. 

Prior  to  the  adoption  of  the  Constitution,  Congress  (then  the  Government)  appears  to 
have  relied  upon  the  State  authorities  for  the  necessary  process  to  compel  the  attendance  of 
witnesses  before  military  courts.  See  liesolution  of  Nov.  16,  1779 — III  Journals  of 
Congress,  392.  In  the  Britisii  law,  by  a  provision  lirst  incorporated  in  the  Mutiny  Act 
in  the  year  1800,  witnesses  neglecting  to  comply  with  a  summons  requiring  their  presence 
at  such  courts  are  made  "liable  to  be  attached  in  the  Court  of  Queen's  Bench."  etc. 
This  provision  well  illustrates  the  close  connection  between  the  executive  and  the  othef 
governmental  powers  in  the  British  Constitution,  where  the  sovereign  is  a  part  of  the 
judiciary  as  well  as  of  the  legislature.  The  fact  of  the  express  distinction  and  separa- 
tion of  the  tliree  powers  in  our  own  organic  law,  one  result  of  which  has  been  to  leave 
courts-martial,  as  agencies  of  the  executive  power,  quite  independent  of  any  review  or 
control  on  the  part  of  the  U.  S.  courts,  has  also  no  doubt  availed  to  preclude  the  devolv- 
ing  upon  the  federal  tribunals  of  a  power  fitly  conferred  iji  the  foreign  statute,  but 
wiiicli  with  us  would  be  anomalous,  exceptional,  and  out  of  harmony  with  our  conslitu' 
tional  system. 

It  may  be  added,  in  regard  to  the  exercise  of  the  authority  to  issue  compulsory 
process  as  vested  in  judge-advocates  by  the  Act  of  1803,  (Sec.  1202,  Rev.  Sts.,)  that  the 
occasions  of  such  exercise  have  been  un frequent  in  practice,  and  no  case  is  known  in 
which  such  authority  has  been  abused.     Ibid. 

'  In  a  leading  case  in  the  Sui)reme  Court  of  the  United  States  it  was  held  that  "  the 
law  by  which  the  admissibih'ty  of  evidence  in  criminal  cases  in  the  courts  of  the  United 
States  is  determined  is  tlie  law  of  the  State  in  which  the  trial  is  held,  as  it  was  when  the 
courts  of  the  United  States  were  established  by  the  Judiciary  Act  of  1789.  The  34th  Sec- 
tion of  that  Act,  declaring  that  the  laws  of  the  several  States  shall  be  regarded  as  rules  of 
decision  in  trials  at  common  law  in  the  courts  of  the  United  States,  in  cases  where  they 
api)ly,  has  no  application  to  the  rules  of  evidence  in  criminal  cases.  And  no  State  law  made 
since  1789  can  affect  the  rules  of  evidence  in  such  cases."*  U.  S.  vs.  Reid,  12  How.,  361; 
Logan  vs.  U.  S.,  144  U.  S.,  263,  300  ;  U.  S.  vs.  Brown,  1  Sawyer,  531  ;  U  S.  rs.  Dow. 
Taney,  34;  U.  S.  vs.  Hawthorne,  1  Dill.,  422;  King  vs.  Worthington,  14  Otto,  44;  Moore 
vs.  U.  S.,  1  ihi<l.,  273 ;  Thompson  vs.  R.  R.  Co.,  6  Wall.,  134 ;  Hinde  vs.  Vattier,  5  Pet.. 
400.  Judge  Curtis  in  his  "  Jurisdiction  of  the  United  States  Courts"  makes  use  of  the 
following  language  in  speaking  of  the  rules  of  evidence  which  apply  to  criminal  trials  in 
the  federal  courts:  "I  should  suppose  the  safer  rule  to  be  that,  in  criminal  trials,  you 
are  to  look  to  the  rules  of  the  Slate  except  so  far  as  you  find  they  have  been  modified  in 
any  way  by  Acts  of  Congress  "  (p.  244).  In  the  trial  of  criminal  cases  removed  from  the 
State  courts  to  those  of  the  United  States,  the  rules  of  evidence  in  the  State  courts 
prevail.  Tenn.  rs.  Davis.  100  U.  S.,  257;  contra,  U.  S.  vs.  Hammond,  2  Woods,  197; 
IJ.  S.  vs.  Block,  4  Saw.,  211  ;  Conkling's  Treatise,  167  ;  Moore  vs.  U.  S.,  91  U.  S.,  270  ; 
II  Story  on  the  Constitution,  1789. 


•  The  rules  of  evidence  in  civil  and  criminal  cases  are  substantially  the  same  (U.  S.  vt.  QoodinK,  12 
■Wheat.,  460) :  the  tfvi  provisions  rflating  especially  to  criminal  cai^es  l:>eing  derived,  as  a  rule,  frocn 
statutes  ratlier  than  from  the  conitrKni  law. 


EVIDENCE.  '  251 

Courts-murtial  being  executive  agencies  form  no  part  of  tlie  judicial  system 
of  tiie  United  States;  and  although  Congress  has  provided  no  specific  rules 
for  their  guidance  in  this  respect,  and  although  their  procedure  is  exemi)ted 
from  tlie  operation  of  tlie  I'Mfth  Amendment  to  the  Constitution,  these 
tribunals  siiould  in  general  follow,  so  far  as  they  are  applicable  to  military 
cases,  the  rules  of  evidence  observed  in  tiie  civil  courts,  and  especially  those 
applieil  Ijy  the  courts  of  the  United  States  in  criminal  cases,' 

As  courts-martial  are  not  bound,  however,  by  any  statute  in  this  par- 
ticular, it  is  thus  open  to  them,  in  the  interests  of  justice,  to  ap})ly  these 
rules  with  more  indulgence  than  the  civil  courts — to  allow,  for  example, 
more  latitude  in  the  introduction  of  testimony  and  in  the  examination  and 
cross-examination  of  witnesses  than  is  commonly  permitted  by  the  latter 
tribunals.  In  such  particulars,  as  persons  on  trial  by  courts-martial  are 
ordinarily  not  versed  in  legal  science  or  practice,  a  liberal  course  should  in 
general  be  pursued  and  an  over-technicality  be  avoided/ 

COMPETENCY    OF    WITNESSES.       CREDIBILITY. 

Competency  of  Witnesses. — The  competency  of  a  witness  is  his  legal 
capacity  to  testify,  and  is  determined  by  enactments  of  Congress  or,  in  the 
absence  of  such  legislation,  by  the  common  law.  Competency  is  always  pre- 
sumed, and  the  burden  of  proving  incompetency  lies  upon  the  party  that 
asserts  it  in  the  case  of  a  particular  witness.  The  credibility  of  a  witness 
is  his  worthiness  of  belief,  and  is  determined  by  his  character,  by  the  acute- 
ness  of  his  powders  of  observation,  by  the  accuracy  and  retentiveness  of  his 
memory,  and  by  his  capacity  to  give  lucid  expression  to  facts  within  his 
knowledge.     Questions  of  competency  are  determined  by  the  court,  and  if 

'  Dig.  J.  A.  Gen.,  393,  par.  1.  Courts- niaitial,  in  tlie  a1)S('ncc  of  any  specific  statutory 
rules,  are  in  general  governed  by  the  rules  of  evidence  of  the  common  law.  Hid.,  398, 
par.  16. 

Courts-martial  should  in  general  follow,  so  far  as  applicable  to  military  cases,  the  rules 
of  evidence  observed  by  the  civil  courts,  aud  especially  the  courts  of  the  United  Slates, 
in  criminal  cases.  Ibid..  393,  pur.  1.  See  3  Greenl.  Ev.,  sec.  476;  Lebanon  rs.  Healh. 
47  N.  Hamp.,  359;  People  m.  Van  Allen,  55  N.  Y.,  39;  2  Opin.  Alt. -Gen..  343;  Grant 
vs.  Gould,  3  ir.  Black.,  87  ;  1  McArthur,  47  :  Harcourt,  76  ;  Dellart.  334  :  O'Brien,  Ui9; 
G.  O.  51,  Middle  Dept.,  1865;  G.  C.  M.  O.  60,  Dept.  of  Texas,  1879;  G.  C.  M  O.  3,  52, 
Dept.  of  tlie  East,  1880. 

'-'  Dig.  J.  A.  Gen.,  393,  par.  1.  Compare  the  views  expressed  in  G.  C.  M.  O.  32, 
War  Dept.,  1872;  G.  C.  M.  O.  23.  Dept.  of  Texas,  1873;  G.  C.  M.  O.  60,  Dent,  of  Cali- 
fornia. 1873. 

The  rules  of  evidence  should  be  applied  by  military  courts  irrespective  of  tlie  rank  of 
the  person  to  be  atlVcted.  Thus  a  witness  for  the  prosecution,  wlnitever  be  his  rank  or 
office,  may  always  be  asked,  on  cross-e.xaniination,  whether  he  has  not  expressed  animos- 
ity toward  tiie  accused,  as  well  as  whctlier  he  has  not  on  a  previous  occasion  made  a 
statement  contradictory  to  or  materially  difTcrent  from  that  embraced  in  his  testimonv. 
Sucli  questions  are  admissible  by  the  establisiied  law  of  evidence,  aud  implv  no  disresjiecl 
to  the  witness,  nor  can  the  witness  properly  decline  to  answer  them  on  the  irround  that 
it  is  disrespectful  to  him  thus  to  attempt  to  discredit  him.*     Dig.  J.  A.  Gen. T 393.  par.  2. 

*  See  opinion  of  the  Judge  Advocate  General,  as  adopted  by  the  President,  in  G.  C.  M.  O.  66.  Head- 
quarters of  .\riiiy.  1879  ;  and  compare  remarks  of  reviewing  officers  in  (i  O.  11.  Dept.  of  California, 
1865  ;  G.  C.  M.  O.  31,  Dept.  of  Dakota,  18C9  ;  G.  C.  M.  O.  8,  Fourth  Military  District,  18CT. 


252  MILITARY  LAW. 

decided  adversely  the  witness  is  not  permitted  to  testify  at  all.  Questions 
of  credibility  are  always  determined  by  tlie  jury.  As  a  court-martial  exer- 
cises the  powers  of  both  judge  and  jury,  its  determination  of  a  question 
respecting  either  the  competency  of  a  witness,  or  the  credibility  to  be  attached 
to  his  testimony  is  final. 

(4R0UNDS    OF    INCOMPETENCY. 

Grounds  of  Incompetency.— The  principal  grounds  of  incompetency  at 
the  comniou  law  are:  (1)  infamy;  (2)  want  of  religious  belief;  (3)  interest 
in  the  subject  of  litigation,  as  a  party  or  otherwise;  (4)  want  of  understand- 


ing. 


The  tendency  of  legislation  in  the  United  States  as  well  as  in  the  several 
States  has  been  to  confer  competency  by  statute,  but  to  permit  the  disquali- 
fying cause  to  be  testified  to  with  a  view  to  affect  the  credibility  of  the 
witness.' 

INFAMY. 

Nature  of  the  Disqualification.— The  term  infamous— W\t\\oni  fame  or 
o-ood  report  —  was  applied  at  common  law  to  certain  crimes,  upon  conviction 
of  which  a  person  became  incompetent  to  testify  as  a  witness.  This  was  upon 
the  theory  that  a  person  would  not  commit  a  crime  of  such  heinous  char- 
acter unless  so  depraved  as  to  be  wholly  insensible  to  the  obligation  of  an 
oath,  and  therefore  unworthy  of  credit.  The  crimes  involving  infamy  are 
treason,  felony,  and  the  crimen  falsi.  As  to  whether  all  species  of  this  last 
are  infamous  there  is  disagreement  among  the  authorities. 

Treason.  —  Treason  as  defined  in  the  Constitution  of  the  United  States  is 
declared  to  consist  only  "  in  levying  war  against  them,  or  in  adhering  to  their 
enemies,  giving  them  aid  and  comfort."  Similar  definitions  occur  in  the 
constitutions  of  the  several  States.  The  essence  of  the  offense  is  a  repudia- 
tion, on  the  part  of  the  individual,  of  his  allegiance  to  the  State  of  which 
he  is  a  citizen.  A  person  convicted  of  so  serious  a  crime  forfeits,  upon  con- 
viction, such  rights  as  attach  to  citizenship.  He  denies  the  obligation  of 
the  laws,  and  properly  forfeits  the  privileges  and  immunities  conferred  by 
them;  one  of  the  most  important  of  which  is  that  of  testifying,  as  a  witness, 
in  a  court  of  the  State  in  which  he  occupies  the  status  of  a  traitor. 

Felony. When    a   person   had    been    convicted   of   certain   crimes   at 

common  law  he  occupied,  in  consequence  of  such  conviction  and  tlie  judg- 
ment had  thereon,  a  peculiar  status  called /e/om/.  Felony  was  therefore, 
in  strictness,  rather  a  result  or  consequence  of  crime  than  a  crime  itself. 
Any  offense  which  at  common  law  was  punishable  capitally  or  with  a 
forfeiture  of  land  and  goods  was  a  felony,  and  a  person  convicted  thereof 

'  I    Greenleaf,  §327;  29  Am.  and  En.s?.  C.vc,  552-564. 

■'  For  a  list  of  States  in  which  such  legislation  has  been  enacted  see,  I.  Greenleaf,  ^ 
.529.  note  a. 


EVIDSyCE.  253 

beonme  infamous  and  forfeited  a  number  of  civil  rights,  among  them  the 
capacity  to  testify,  as  a  witness,  in  a  court  of  justice.' 

Practice  of  the  United  States  Courts. — It  has  been  seen  that  tlie  United 
States,  as  such,  has  no  coruniou-law  jurisdiction.  There  is,  therefore,  no 
status  of  felony  under  the  laws  of  the  United  States  unless  an  offense  has 
been  declared  felonious  or  infamous  by  statute,  or  unless  the  punishment 
attached  thereto  is  such  as  to  render  one  who  has  undergone  it  infamous. 
"  What  punishments  shall  be  considered  as  infamous  may  be  affected  by 
changes  of  public  opinion  from  one  age  to  another.  For  more  than  a  cen- 
tury imprisonment  at  hard  labor  in  the  State  prison  or  pcnitenliary  has 
been  considered  as  infamous  punishment  in  England  and  America.  Such 
imprisonment,  with  or  witliout  hard  labor,  is  at  present  considered  infamous 
punishment." ' 

Crimen  Falsi. — At  common  law  the  crimen  falsi  "  was  any  offense 
involving  falsehood  and  which  might  injuriously  affect  the  administration 
of  justice  by  the  introduction  of  falsehood  or  fraud";'  and  any  person 
guilty  of  such  an  offense  was  properly  regarded  as  incompetent  to  testify,  in 
view  of  such  willful  disregard  of  truth  and  wanton  contempt  for  the  solemn 
sanction  of  an  oath.  The  offenses  included  under  this  head  are  forgery, 
perjury,  subornation  of  perjury,  suppression  of  testimony  by  bribery,  or 
conspiracy  to  procure  the  absence  of  a  witness  or  to  accuse  one  of  a  crime. 


•  Greenleaf,  §§  372-381. 

»  Mackin  vs.  U.  S..  117  U.  S.,  350-353;  Ej: parte  VfWson.  114  U.  S.,  117.  In  the 
courts  of  Ibe  United  Slates  as  well  as  in  those  of  the  several  States  there  is  some  con- 
fusion as  to  the  precise  meaning  of  the  term  felony,  and  consequently  as  to  what 
olTenses  are  felonious  and,  as  such,  involve  incompetency  to  testify.  In  some  of  the 
St;ites  the  rules  of  the  common  law  still  i^revail  ;  in  others  all  grounds  of  incomjietency 
have  been  swept  away  by  staliUe  ;  between  these  two  extremes  falls  the  practice  of  the 
several  States  of  the  Union  in  respect  to  felony  as  a  cause  of  disciualiticatiou.  The 
practice  in  a  particular  State  can  only  be  ascertained  by  an  examination  of  its  statutes 
relating  to  the  competency  and  credibility  of  witnesses.  In  most  of  the  States,  how- 
ever, it  may  be  said  that  all  statutory  crimes  not  capital  arc  cla,ssed  .-is  felonies  or  as 
misdemeanors  accordingly  as  they  are,  or  are  not,  punishable  by  imprisonment  in  the 
Slate  prison  or  penitentiary. 

Desertion  is  not  a  felony  and  does  not  render  a  witness  incompetent  at  common  law 
or  before  a  court-martial.  Nor  does  the  loss  of  citizenshii)  tipon  conviction  of  desertion, 
under  Sections  1996  and  1998.  Rev i.sed  Statutes,  have  such  effect,  the  competency  of  a 
witness  not  depending  ui)on  his  ciiizensliip.  A  pardon  of  a  per.son  thus  convii  ted 
would  not,  therefore,  add  to  his  competency.  But  where  it  was  proposed  to  introduce 
such  a  person  as  a  material  witness  for  the  prosecution  in  an  important  case,  adrised 
that  it  would  be  desirable  to  remit  the  unexecuted  portion  of  his  sentence,  if  any.  Dig. 
J.  A.  Gen..  399,  par.  24. 

The  f:ict  th.al  a  party  is  a  public  enemy  of  the  United  States,  or  has  engaged  in 
giving  aid  to  the  enemy,  does  not  alTect  the  competency  of  his  testimony  us  .i  witness 
before  a  court-martial.  Where  teslifyimr.  however,  in  time  of  w:ir,  either  in  favor  of  a 
person  in  the  enemy's  service  or  an  ally  of  or  sympathizer  with  the  enemy,  or  aiTMiiist  a 
Feder.il  otficer  or  soldier,  his  statements  (like  those  of  an  accomjiliee)  are  ordiiiarih  to 
be  received  with  caiUion  unless  corroborated.  The  fact  that  a  party  is  under  a  political 
disability  is  not  one  whi<h  goes  to  his  competency  if  ofTt  red  as  a  witness.  So  the  fact 
that  a  witness  has  been  convicted  of  desertion  may  impair  his  credibility,  but  cannot 
affect  his  competency.     Jfnd..  .397,  par.  12. 

»  I.  Greenleaf,  §  373  ;  U.  S.  vs.  P.uler,  2  Cr.  C.  C,  60. 


254  MILITARY  LAW. 

and  other  offenses  of  a  similar  character;  each  of  which  involves  the 
repudiation,  on  the  part  of  the  individual,  of  the  sanction  of  an  oath  and  a 
willful  attempt  to  introduce  falsehood  and  fraud  into  judicial  proceedings, 
under  the  guise  of  testimony  and  with  a  view  to  subvert  the  ends  of  jus- 
tice.' 

Procedure  in  Case  of  Incompetency  from  Infamy. — Licoinpctencii  from 
infamy  is  established  by  the  production  or  proof  of  the  judgment  itself.  In 
the  case  of  a  person  against  whom  incompetency  from  infamy  is  alleged, 
the  incompetency  is  established  by  production  or  proof  of  the  judgment 
itself."  A  finding  of  guilt  merely  is  not  sufficient,  but  the  judgment  itself 
must  be  produced.  Incompetency  so  established  is  not  removed  by  the  mere 
execution  of  the  sentence,^  but  may  be  removed  by  reversal  of  judgment  or 
by  pardon.''  In  the  latter  case,  if  the  statute  imposing  the  penalty  is,  in 
its  nature,  a  rule  of  evidence  and  not  a  measure  of  punislnnent  only,  it  has 
been  held  that  a  pardon  will  not  operate  to  restore  competency,  but  that  a 
reversal  of  judgment  is  necessary;  the  power  to  pardon  being  subordinate  to 
the  paramount  authority  of  the  legislature  to  prescribe  rules  of  evidence  as 
an  incident  of  procedure  in  actions  at  law.' 

Incompetency  based  upon  conviction  of  an  infamous  offense  does  not, 
in  general,  operate  to  produce  incompetency  beyond  the  jurisdiction  in 
which  the  conviction  was  had.  Persons  infamous  in  one  State  are  there- 
fore not  necessarily  incompetent  in  the  courts  of  another  State  or  in  the 
courts  of  the  United  States.''  Such  convictions,  however,  may  be  estab- 
lished in  evidence  with  a  view  to  affect  credibility. 

INTEREST. 

Reason  for  the  Disqualification. — It  was  a  rule  of  the  common  law  that 
in  a  civil  action  a  party  to  the  record  or  one  who  was  interested  in  the 
result  of  the  litigation  was  permitted  to  testify  against  his  interest,  but  was 
regarded  as  incompetent  to  give  evidence  in  his  own  behalf.  This  by  reason 
of  his  interest  in  the  subject  of  the  action,  based  upon  the  experience  of 
mankind  and  the  belief  that  any  testimony  given  by  a  party  would  be 
colored  by  his  relationship  to  the  controversy.  It  was  also  regarded  as 
expedient,  from  the  point  of  view  of  an  enlightened  public  policy,  to  remove 
from  the  path  of  a  witness  every  temptation  to  commit  perjury.  To  dis- 
qualify, the  interest  must  be  real  and  actual  and  not  conditional  merely; 

>  I.  Gieenleaf,  ^  373. 

«  U.  S.  vs.  Biebusch,  1  Fed.  Rep.,  213. 

»  U.  S.  vs.  Brown,  4  Cr.  C.  C,  607 ;  Logaa  vs.  U.  S.,  144  U.  S.,  263,  302  ;  Boyd  vs. 
U.  S..  142  U.  S.,450. 

*  U.  S.  vs.  Rutherford,  2  Cr.  C.  C,  528.  It  is  proper  to  say  that  the  rule  above  stated 
is  one  which  is  not  universally  accepted.     See  I.  Greenleaf,  §  378,  notes  2  and  3. 

'  Sections  5392  and  5393,  Revised  Statutes ;  Houghtaling  vs.  Kelderhouse,  1  Parker, 
241  ;  American  Jurist,  vol.  xi.  pp.  360-362. 

«  U.  S.  vs.  Logan,  45  Fed.  Rep.,  872. 


EVIDENCE.  255 

the  particular  degree  of  interest  that  will  disqualify  in  any  case  being  de- 
termined by  the  court;  the  test  applied  being  whether  the  witness  will 
*' gain  or  lose  by  the  legal  operation  of  the  judgment,  or  that  the  record 
will  be  legal  evidence  for  or  against  him  in  some  other  action."  ' 

Application  to  Criminal  Cases.  —  The  rule  that  interest  disqualifies 
applies  in  criminal  as  well  as  civil  cases  when  the  witness  has  a  direct, 
certain,  and  immediate  interest  in  tlie  result  of  the  prosecution.  The 
interest  may  be  to  recover  a  penalty,  to  obtain  a  reward  or  other  benefit,  or 
to  secure  immunity  from  prosecution;  the  disqualifying  interest  may  also  be 
that  of  an  accomplice  or  codefendant." 

Testimony  against  Interest. — A  party  is  competent  to  testify  voluntarily 
against  himself  at  any  time  and  in  any  case.  He  may  do  this  under  the 
sanction  of  an  oath,  or  he  may  accomplish  the  same  purpose  indirectly  by 
means  of  confessions,  or  declarations  against  interest,  made  out  of  court  in 
a  matter  relating  to  the  offense  with  which  he  is  charged. 

The  Accused  in  a  Criminal  Case. — The  party  chiefly  interested  in  a 
criminal  prosecution  is  the  accused  himself,  the  prosecutor  or  plaintiff  being 
always  the  State,  which,  for  reasons  of  public  policy,  regards  all  criminal 
acts  as  directed  against  the  peace  and  dignity  of  the  commonwealth.  The 
party  actually  injured  by  the  commission  of  a  criminal  offense,  who  is  known 
as  the  prosecutor,  ov  prosecuting  ioitness,  is  always  a  competent,  and  in  most 
cases  a  necessary,  witness.'  With  a  view  to  prevent  what  were  known  as 
inquisitorial  trials,  it  has  long  been  the  practice  at  the  common  law  not 
only  to  forbid  an  accused  person  to  testify  against  himself  (except  by  way 
of  confession,  as  will  presently  be  described),  but  to  deprive  the  courts  of 
the  power  to  compel  such  testimony.  This  right  is  guaranteed  to  persons 
accused  of  crime  in  the  Constitution  of  the  United  States  and  in  the  consti- 
tutions of  the  several  States  of  the  Union. 

Competency  of  Accused  Restored  by  Statute. — The  incompetency  of  an 
accused  person  may  be  removed  by  a  statute  permitting  him  to  testify  in  his 
own  behalf.  Such  competency  to  testify  is  conferred  upon  persons  tried  by 
court-martial  by  the  Act  of  March  IG,  1878,  which  provides  that  "  in  the 
trial  of  all  indictments,  informations,  complaints,  and  other  proceedings 
against  persons  charged  with  the  commission  of  crimes,  offenses,  and  mis- 
demeanors in  the  United  States  courts,  Territorial  courts,  and  courts- 
martial,  and  courts  of  inquiry,  in  any  State  or  Territory,  including  the 
District  of  Columbia,  the  person  so  charged  shall,  at  his  own  request,  bat 


•  I.  Greeuletif,  g  390. 

'  I.  Greeiileaf.  J:^  403.  407. 

'  U.  S.  M.  Murphy,  16  Pet.,  203;  U.  S.  vs.  McCann.  1  Cr.  C.  C,  207;  U.  S.  vs. 
Brown,  ibid.,  210  ;  U.  S.  vs.  Tolson,  ibid..  269  :  U.  S.  vs.  Caruot.  2  ibid.,  469  ;  U.  S.  vs. 
Clancy,  1  Cr.  C.  C.  13 ;  U.  S.  vs.  Hare.  1  Cr.  C.  C  82.  As  to  informers,  see  U.  S.  vs. 
Wilson,  1  Bald.,  78  ;  U.  S.  vs.  Patterson,  3  McL  ,  53. 


256  MILITARY  LAW. 

not  otherwise,  be  a  competent  witness.     Aud  his   failure   to  make  such 
request  shall  not  create  any  presumption  against  him."  ' 

The  privilege  conferred  by  this  statute  is  that  of  competency  to  testify, 
of  which  the  accused  may  avail  himself  or  not,  at  his  discretion.  If  he 
declines  to  appear  as  a  witness,  the  statute  provides  that  his  failure  to 
appear  shall  create  no  presumption  against  him ;  if  he  avails  himself  of  the 
statutory  privilege,  however,  his  status  is  precisely  the  same  as  that  of  any 
other  witness;'  he  is  examined  in  the  same  manner  by  question  and  answer, 
he  is  subject  to  cross-examination,  his  competency  and  credibility  may  be 
assailed,  and  his  testimony  may  be  rebutted  like  that  of  any  other  witness.  =' 


>  Act  of  March  16,  1878  (20  Stat,  at  Large,  30).  . ,   ,    , 

•^  The  Act  of  March  16,  1878,  (20  Stut.  at  Large,  30,)  liaviug  provided  that  a  person 
charo-ed  with  the  commissiou  of  a  crime  may,  at  his  own  request,  be  a  competent  wU- 
iiess 111  the  trial,  but  that  '•  his  faihne  to  make  such  request  .shall  uot  create  any  pre- 
sumption a"aiiist  him,"  all  comment  upon  such  failure  must  be  excluded  from  the  jury. 
Wilson  rs  U  S  149  U.  S.,  60.  Sucli  failure  to  testify  is  not  to  create  a  presumption  of 
guilt,  u!  S.  w.'Pendertrrast,  32  Fed.  Rep.,  198.  When  such  an  accused  person  elects 
to  testify  in  his  own  behalf,  his  testimony  may  be  impeached.     U.  S.  m.  Brown,  40  Fed. 

An  accused  person  cannot  testify  in  his  own  behalf  if  incompetent  to  testify  as  a 
witness  for  any  cause.     U.  S.  vs.  Hollis,  43  Fed.  Rep.,  248. 

Pardon  restores  competency  to  testify.  Logan  w.  U.S.,  144  U.  S.,  263;  Boyd  vs. 
U.  S..  142  U.  S.,  454.     But  see  note  5,  page  254,  supra. 

If  he  waives  his  privilege  as  to  one  act,  he  does  so  fully  in  relation  to  that  act.  But 
he  does  not  thereby  waive'his  privilege  of  refusing  to  reveal  other  acts,  wholly  uncon- 
nected with  the  act  of  whi(;h  he  has  spoken,  even  though  they  be  material  to  the  issue. 
Low  vs.  Mitchell,  18  Me.,  372  ;  Tillson  vs.  Bowley,  8  Ureenl.,  163.  _ 

«  The  testimony  of  an  accused  parly  is  competent  only  when  presented  as  authorized 
by  the  Act  of  March  16,  1878,  chapter  37,  viz.,  when  the  party  himself  requests  to  be 
admitted  to  testif v.  But  such  testimony  is  not  excepted  from  the  ordinary  rules  gov- 
erning the  admis'sibility  of  evidence,  nor  from  the  application  of  the  usual  tests  of 
cross-examination,  rebuttal,  etc.  Dig.  Opiu.  J.  A.  Gun.,  p.  398,  par.  14.  See,  also, 
Manual  for  Courts-martial,  p.  40,  par.  2.  .,,,,,-, 

It  was  formerly  an  established  rule  that  accused  jiarties  could  not  legally  testily  as 
witnesses  before  military  courts.  But,  by  the  Act  of  March  16,  1878,  chapter  37,  it  is 
now  expressly  provided  tliut  at  trials  not  only  before  the  courts  of  the  United  States, 
but  before  co<irts-martial  and  courts  of  inquiry,  "  the  person  charged  shall,  at  his  own 
request,  but  not  otherwise,  be  a  competent  witness."  It  is  added  :  "And  his  failure 
to  make  such  re(}uest  shall  not  create  any  iiresumption  against  him."  But  parlies  testi- 
fying under  this  Act  have  no  exceptional  status  or  privileges  ;  they  must  take  the  stand 
aiurbe  subject  to  cross-examination  like  other  witnesses.  The  submission  by  the 
accu.^ed  of  a  sworn  written  statement  is  not  a  legitimate  exercise  of  the  authority  to 
testify  conferred  by  the  statute,  and  such  a  statement  should  not  be  admitted  in  evitlence 
by  the  court.      /ftiV^'.,  749,  par.  2.  ,   ,      , 

The  Act  of  March  16,  1878,  (20  Stat,  at  Large,  30,)  provides  that  a  defendant  charged 
with  crime  shall,  at  his  own  recjuest,  but  not  otherwise,  be  a  competent  witness  ;  that  is 
to  say,  he  .shall  not  labor  under  disability  t)ecause  he  is  a  party  in  interest,  and,  not- 
withstanding this,  may  testify,  liut  when  a  party  oilers  himself  as  a  willies'^  in  his 
own  behalf,  he  must  be  treated  as  any  other  witness,  and  is  subject  to  any_  exception 
which  would  apply  to  any  oth(;r  witness  ;  in  other  words,  the  act  frees  him  from  a 
disability.  It  does  not  confer  upon  him  any  pec\iliar  exemption.  So  when  a  defendant 
is  put  on  the  stand  as  a  witness,  his  general  character  for  truth  may  be  attacked,  and  if, 
by  his  conduct,  he  has  lost  the  privilege  of  testifying  in  courts  of  justice  by  the  com- 
mission of  an  infamous  crime,  this  will  attach  to  him  and  prevent  him  from  testifying 
in  his  own  behalf.     U.  S.  vs.  Hollis,  43  Fed.  liep  ,  248. 

"A  disposition  has  been  manifesteii  of  hitc  to  allow  the  accused  to  give  evidence  in 
his  own  behalf  ;  and  statutes  to  thai  eflect  are  in  existence  in  some  of  the  States,  the 
operation  of  which  is  believed  to  have  been  generally  satisfactory.     These  statutes, 


EVIDENCE.  257 

Accomplices  and  Codefendants. — The  testimony  of  accomplices,'  code- 
fendiints,'  uiui  the  like  is,  us  u  rule,  excluded.  With  a  view  to  attain  the 
ends  of  justice,  however,  it  is  sometimes  necessary  to  obtain  such  testimony 
in  a  case  in  which  a  serious  offense  would  otherwise  go  unpunished.  An 
accomplice  or  codefendant  is  incompetent  for  two  reasons:  first,  because  of 
infamy;  second,  because  of  interest.  The  first  ground  accrues  upon  convic- 
tion and  judgment;  the  second,  when  ;in  indictment  has  been  obtained  or  a 
prosecution  begun.  If  judgment  be  withheld  or  suspended,  or  if  a  nolle 
prosequi  be  entered  in  the  case  of  an  accomplice,  he  becomes  competent  at 
common  law,  so  far  as  infamy  is  concerned,  and  may  testify  for  or  against 
the  principal  or  codefendant.  The  credibility  to  be  attached  to  such  testi- 
mony is  a  question  for  the  court-martial  to  determine,  and  great  weight  will 
not  be  given  to  it  unless  it  is  corroborated  by  other  and  better  testimony,  or 
strongly  supported  by  facts  otherwise  established  in  evidence. 

Husband  and  Wife — Exceptions. — ^The  absolute  identity  of  interest  in 
the  case  of  husband  and  wife,  and  the  peculiar  situation  of  dependence 
occupied  by  the  latter,  are  recognized  by  the  common  law  in  a  provision 
making  either  party  to  a  marriage  contract  incompetent  to  testify  for  or 
against  the  other  in  any  action,  civil  or  criminal,  to  which  the  other  is  a 
party.'  It  does  not  matter  when  the  relation  of  marriage  existed,  or 
whetlier  it  exists  at  the  time  of  the  trial;  it  is  only  necessary  tliat  that  mar- 
riage should  have  been  lawful,  and  that  the  parties  occupied  that  relation 
when  the  crime  was  committed  or  the  cause  of  action  accrued.  An  excep- 
tion to  the  rule  exists  in  the  case  of  a  crime  committed  by  a  husband  against 
the  person  of  the  wife.*     In  this  case,  in  strictness,  the  State — not  the  wife 

however,  caunot  be  so  coustrued  as  to  luitliorize  compulsory  process  against  an  accused  to 
compel  him  to  tiisclose  more  than  lie  cliooses  ;  the}'  do  not  so  far  cliaiige  the  old  system 
as  to  establish  an  inquisitorial  process  for  obtaining  evidence  ;  they  confer  a  privilege, 
which  the  liefendant  may  use  at  his  option.  If  he  does  not  clioose  to  avail  himself  of  it, 
unfavorable  inferences  are  not  to  be  drawn,  to  his  prejudice,  from  that  circumstance  ; 
and  if  he  does  testify,  he  is  at  liberty  to  stop  at  any  point  he  chooses,  and  it  must  be 
left  to  the  jury  to  give  a  statement  which  he  declines  to  make  a  full  one  such  weight 
as,  under  the  circumstances,  they  think  it  entitled  to  ;  otherwise  the  statute  must  ha\e 
set  aside  and  overruled  the  constitutional  maxim  whicli  protects  an  accused  paily  against 
being  compellrd  to  testify  against  himself,  and  the  statutory  privilege  beccnnes  a  snare 
and  a  danger."     C^ooley,    Con.stittitional  Limitations,  6th  Edition,  384-386. 

'  In  tlie  following  cases  the  testimonj'  of  accomplices  has  been  admitted,  the  degree 
of  credibililv  in  eacli  case  being  determined  bv  the  jury:  U.  S.  vs.  Troa.x.  3  McL., 
224;  U.  S.  r.«.  Houghton,  14  Ftd.  Rep.,  .^)44  ;  "U.  S.  vs.  Fieminir,  18  Fed.  Hei...  9(il  ; 
U.  S.  vs.  Brown.  4  McL.,  142  :  U.  S.  vs.  Harres.  2  Bond,  311  ;  U.  S.  r.-t  Lanca>,ter.  2 
McL.,  431  ;  U.  S.  r,*.  McKee,  3  Dillon,  ')')\  ;  Steiidiam  vs.  U.  S.,  2  Paine, 

'^  U.  S.  vs.  Schindler,  18  Biatchford,  227  ;  U.  S.  vs.  Clements.  3  Hughes.  5(11)  ;  U.  S. 
vs.  Rutherford,  2  Cr.  C.  C,  528  ;  liaker  xs.  U.  S..  1  Minn.,  207  ;  Latcham  vs.  Territory, 
1  Oregon,  140  ;  Caldwell  rs    Walters,  4  Cr.  C  C,  675. 

^  The  wife  of  a  person  accused  of  crime  is  not  a  competent  witness  for  or  against 
him.  Comment  on  her  absence  by  the  disliic-t  attorney  held  to  be  reversibi(;  error. 
Giaves  vs.  U.  8.,  130  U.  S  ,  118  ;  U.  S.  vs.  Jones,  32  Fed.  Rep.,  509  ;  Lucas  i*.  Brooks, 
18  Wall.,  43ti  ;  I.  Greenleaf,  ^  334;  Stein  w.  Bowman,  13  Pet.  209  ;  Co.  Lit.,  6,  b.;  Hawk, 
b.   2,  c.  46,  ii  70:  Fitch  vs.  Hill,  11  Mass.,  286. 

^  Barrett  vs.  U.  S..  137  U.  S.,  496  ;  U.  S.  vs.  Smallwood,  5  Cr.  C.  C,  35  ;  U.  S.  t*. 
Fitton,  4  Cr.  C.  C,  658  ;  Stein  vs.  Bowm.an,  13  Pet.,  209  ,  1  Hale  P.  C,  301. 


25S  MILITARY  LAW. 

— is  the  plaintiflF;  but  the  exception  is  made,  not  for  this  reason,  which 
would  be  merely  technical,  but  on  the  broad  ground  of  public  policy.  For 
the  reason  above  stated,  the  dying  declaration  of  the  wife  is  admissible 
against  the  husband,  or  the  reverse,  when  he  is  charged  with  the  murder  of 
the  declarant. 

It  has  been  uniformly  held  in  the  practice  of  courts-martial  that  the 
wife  of  a  person  on  trial  could  not  properly  be  admitted  as  a  witness  for  or 
against  him;  and  the  statute  authorizing  accused  j)arties  to  testify  does  not 
affect  this  rule.  The  wife,  however,  of  an  officer  or  soldier  may  be  admitted 
to  testify  in  his  case  before  a  court  of  inquiry,  the  proceeding  before  such  a 
body  not  being  a  trial,  but  an  investigation  merely.' 

WANT    OF    UNDERSTANDING. 

Want  of  Understanding. — Deficiency  of  understanding  becomes  a  ground 
of  incompetency,  because  persons  so  afflicted  are  not  only  unable  to  appre- 
ciate the  sanction  of  an  oath,  but  are  lacking  also  in  capacity  to  observe 
events  accurately,  to  remember  them  or  to  testify  to  them  lucidly,  or  with  full 
understanding  of  their  significance  in  a  court  of  justice.  Under  this  head 
fall  young  children,  the  deaf  and  dumb,  idiots,  the  insane,  and  persons 
nnder  the  infiuenceof  drugs  or  intoxicating  liquors."^  "  It  makes  no  differ- 
ence from  what  cause  this  defect  of  understanding  may  have  arisen,  nor 
whether  it  be  temporary  and  curable  or  permanent,  whether  the  party  be 
hopelessly  an  idiot,  or  maniac,  or  only  occasionally  insane,  as  a  lunatic,  or 
be  intoxicated,  or  whether  the  defect  arises  from  mere  immaturity  of 
intellect,  as  in  the  case  of  children.  While  a  deficiency  of  understanding 
exists,  be  the  cause  of  what  nature  soever,  the  person  is  not  admissible  to  be 
sworn  as  a  witness.  But  if  the  cause  be  temporary,  and  a  lucid  interval 
should  occur,  or  a  cure  be  effected,  the  competency  is  restored."  ' 

Children. — In  the  case  of  children  the  question  is  not  so  much  of  age  as 
of  intelligence  and  moral  responsibility,  which  must  be  present  in  such  a 
degree  as  to  enable  the  child  to  observe  facts  with  accuracy,  to  testify  to 

'  Di<T.  J.  A.  Gen.,  750,  par.  3.  Where  a  court-martial  refused  to  admit  iu  evidence 
(as  being  incompetent)  the  testimony  of  the  wife  of  the  pioseculing  witness,  held  that  its 
action  was  entirely  erroneous,  no  legal  objection  existing  to  the  competency  of  such  a 
person.  Dig.  Opiu.  J.  A.  Gen.,  750,  par.  'd.  See,  also,  Manual  for  Courts-martial,  p.  40, 
par.  3. 

A  wife  is  not  a  competent  witness  to  prove  a  charge  of  failing  to  support  her  for 
which  her  husband  is  on  trial.*     Ibid.,  .'399,  par.  21. 

Nor  will  the  testimony  of  the  wife  of  an  accused  be  admissible  in  favor  of  or  against  a 
party  jointly  charged  with  him,  where  her  testimony  will  be  material  to  the  merits  of 
the  question  of  the  guilt  or  innocence  of  her  husband.  See  Territory  vs.  Paul,  3  Mon- 
tana, 'iU. 

^  I.  Greenleaf,  365-367,  and  cases  cited. 

»  I'jid.,  365. 

^ ■ 

*  Under  the  Act  of  March  3.  1887,  (2t  Stat,  at  I.arpe,  63.5.)  a  wife  or  husband  is  a  competent  wit- 
ness In  a  trial  for  bigamy,  polygamy  or  unlawful  cohabitation. 


EVIDEM'E.  259 

tliem  correctly,  and  to  realize  the  responsibility  of  an  oath.  Althongh  the 
presumption  is  against  the  admission  of  the  testimony  of  children  under 
seven  there  are  instances  in  which  children  of  peculiar  intelligence  and 
capacity  have  been  permitted  to  testify  below  that  age,  but  such  cases  con- 
stitute marked  exceptions  to  a  well-defined  rule.' 

Insanity. If  insanity  is  alleged,  and  the  facts  were  observed  and  the 

testimony  fiven  during  what  are  known  as  lucid  intervals,  competency  will 
be  presumed.  The  burden  of  proof  of  incompetency  in  such  cases  rests  first 
upon  the  party  who  advances  it  as  a  ground  of  objection,  to  the  extent  of 
establishing  the  general  ground  of  incompetency,  and  then  upon  the  party 
producing  the  witness,  of  proving  the  case  to  be  an  exception  to  the  rule.* 
As  in  all  other  cases  of  incompetency,  questions  of  mental  incapacity  are 
determined  by  the  court. 

Want  of  Religious  Belief. — The  law  regards  the  giving  of  testimony  not 
only  as  an  important  duty  owed  by  a  citizen  to  the  State,  but  as  an  act  of 
such  serious  importance  as  to  require  its  performance  to  be  accompanied  by 
the  solemn  sanction  of  an  oath.  The  administration  of  an  oath  is,  there- 
fore, not  a  mere  ceremonial  observance,  but  an  act  presuming  religious 
belief  of  some  kind  on  the  part  of  the  person  taking  it.  If  such  person  is 
wanting  in  religious  belief,  he  is  not  regarded,  at  common  law,  as  competent 
to  testify  as  a  witness  in  a  court  of  justice.  The  particular  form  of  religioua 
belief  cherished  by  a  witness  is  not  material,  so  long  as  it  contemplates  the 
existence  of  a  supreme  being  to  whom  he  acknowledges  a  moral  account- 
ability. An  oath  may  therefore  be  defined  as  "  an  outward  pledge  given  by 
the  juror  (or  other  person  taking  it)  that  his  attestation  or  promise  is  made 
under  an  immediate  sense  of  his  responsibility  to  God."  '  A  security  to  this 
extent,  for  the  truth  of  testimony,  is  all  that  the  law  seems  to  have  deemed 
necessary;  and  with  less  security  than  this  it  is  believed  that  the  purposes 
of  justice  cannot  be  accomplished.* 

'  Commonweiilth  vs.  Ilutchiiisoii.  10  Mass.,  225  ;  Givens  vs.  Com.,  29  Gr.itt.  (Va.),  830; 
State  vs.  Latlin,  29  Coiiu.,  889;  Flamiiirin  vs.  State,  25  Ark.,  90  ;  Com.  rs.  Mullins.  2 
Allen,  295;  I.  Greenleaf,  g  307,  note  2;  1  Green's  Crim.  Reps.,  570;  State  r.f.  Morea.  2  Ala.. 
275;  Slate  t'.s.  Wbittier,  2Mo.,  341.  Where  a  conviction  (of  rape)  rested  mainly  on  the 
testimony  of  the  victim,  a  ciiilil  eight  yeais  of  a.<:e,  held  thai  the  competency  of  the  wit- 
ness was  doubtful,  and  that  the  trial  should  have  been  suspended  and  tlie  cliild  instructed. 
"Where  a  court-martial  received  the  testimony  of  a  female  cliild  of  3s  years  without 
swearing  her,  held  that  it  had  wholly  exceeded  its  authority,  unsworn  testimony  being 
entirely  incompetent  in  any  case.     Dig.  J.  A.  Gen.,  399,  par.  22;  I.  Greenleaf.  §  367. 

-  An  insane  jierson  is  no  more  competent  as  a  witness  before  a  court-marl ial  tiian  at 
common  law.  Testimony  admitted  of  a  person  shown  to  be  insane  should  be  stricken 
out  on  motion  made.     Dig.  Opin.  J.  A.  Gen.,  399,  par.  23. 

A  person  who  is  insane  at  the  time  is  incompetent  as  a  witness.  An  objection, 
liowever,  to  a  witness  on  account  of  alleged  insanity  will  not  properly  be  allowed  unless 
sustained  by  clear  proof,  a  man  being  ahvavs  presumed  to  be  sane  till  proven  to  be 
otherwise.  Ibid.,  751,  par.  8;  Evans  rs.  Heltick,  7  Wheat.,  470  ;  D.  C.  vs.  Armes,  107 
U.  S..  519. 

3  Tayler  on  Oaths,  15. 

•>  Com.  rs.  Winuemore,  2  Brewster  (Pa.),  378;  1  Phil.  Evid.,  19  ;  1  Law  Rep.,  pp.  346, 
347-  I.  Greenleaf,  S§  368-370  ;   Wakefield  rs.  Ross,  5  Mason,  16.     A  belief  in  the  exist- 


260  MILITARY  LAW. 


PROCEDURE    IN    CASES    OF    INCOMPETENCY. 

Procedure. — As  has  beeu  said,  the  competency  of  a  witness  is  presumed 
iu  ail  cases,  and  the  burden  of  establishing  the  contrary  falls  upon  him  who 
alleges  it  to  exist.  The  question  of  competency  should  in  general  be  raised 
and  decided  before  the  witness  is  sworn,  but  may  come  up  at  any  time  when 
his  incompetency  becomes  apparent.  Being  matters  of  law,  or  of  the  appli- 
cation of  law  to  fact,  questions  of  competency  are  always  determined  by  the 
court.  If  the  judgment  be  in  favor  of  the  witness,  he  is  allowed  to  testify; 
if  the  contrary,  he  is  not  permitted  to  be  sworn  and  is  excused  from  further 
attendance  upon  the  sessions  of  the  court.  In  some  cases  the  fact  of 
incompetency  is  apparent  from  some  record  or  judgment,  as  from  a  judg- 
ment record  where  infamy  is  alleged;  in  others  the  facts  tending  to  show 
incompetency  are  given  in  evidence,  and  the  question  is  decided  by  the 
court  after  a  full  presentation  of  both  sides  of  the  case. 

The  Voir  Dire. — ^Yhen  interest  or  want  of  religious  belief  is  alleged  as  a 
ground  of  incompetency  the  fact  may  be  established  by  the  testimony  of 

ence  of  a  God  and  that  offenses  will  be  punished  in  this  life,  not  in  the  next,  has  beeu 
held  sutlicieut.  U.  S.  vs.  Kennedy,  3  McL.,  175;  Omichuud,  vs.  Barker,  Willis.  545.  The 
witness  may  be  examined  as  to  his  religious  belief.  U.  S.  vs.  White,  5  (-r.  C.  C,  38  ; 
Rutherford  vs.  Moore,  1  Cr.  C.  C,  404.  See,  also,  U.  S.  vs.  Kennedy,  3  McLean,  175  ; 
Beunet  vs.  State,  1  Swan.  411. 

It  is  no  objection  to  the  competency  of  a  witness  that  he  is  the  officer  upon  whom 
will  devolve  the  duty  of  reviewing  authority  when  the  proceedings  are  terminated.  Dig. 
J.  A.  (Jen.  751,  par.  6. 

It  is  no  objection  to  the  competency  of  a  witness  that  his  name  is  not  on  the  list 
of  witnesses  appended  to  the  charges  when  served.  The  piosecution  is  not  obliged  to 
furnish  any  list  of  witnesses,  nor,  where  one  is  furnished,  to  coutiue  itself  to  the  wit- 
nesses thus  specified.  The  fact  that  material  testimony  is  given  by  an  unexpected  wit- 
ness may  indeed  constitute  ground  for  an  application  by  the  accused  (under  Article  93) 
for  ftirther  time  for  the  preparation  of  his  defense.     Ibid.,  par.  7. 

The  fact  that  a  party  is  a  public  enemy  of  the  United  States  or  has  engaged  in 
giving  aid  to  the  enemy  does  not  affect  the  competency  of  his  testimony  as  a  wit- 
ness before  a  court-martial.  Where  testifying,  however,  in  time  of  war,  either  in  favor 
of  a  person  in  the  enemy's  service  or  an  ally  of  or  sympathizer  with  the  enemy,  or  against 
a  federal  officer  or  soldier,  his  statements  (like  those  of  an  accomplice)  are  ordinarily  to 
be  received  with  caution  unless  corroborated.  The  fact  that  a  party  is  under  a  political 
disability  is  not  one  which  goes  to  his  competency  if  offered  as  a  witness.  So  the  fact 
that  a  witness  Las  been  convicted  of  desertion  may  impair  his  credibility,  but  cannot 
affect  hi?  competenc}'.     Ibid.,  397,  par.   12. 

Desertion  is  not  a  felony  and  does  not  render  a  witness  incompetent  at  common  law 
or  before  a  court-martial.  Nor  does  the  loss  of  citizenship  upon  conviction  of  desertion, 
under  Sections  1996  and  199»,  Kevised  Statutes,  have  such  effect,  the  competency  of  a 
witness  not  depending  upon  h.s  citizenship.  A  pardon  of  a  person  thus  convicted  would 
not,  therefore,  add  to  his  competency.  But  where  it  was  proposed  to  introduce  such  a 
person  as  a  material  witness  for  the  prosecution  in  an  important  case,  advised  that  it 
would  be  desirable  to  remit  the  unexecuted  portion  of  his  sentence,  if  any.  Ibid.,  399, 
par.  24. 

The  president  or  any  member  of  a  court-martial,  as  also  the  judge-advocate,  may 
legally  irive  testimony  before  the  court.  That  the  court,  at  the  time  of  a  member's  tes- 
tifying, is  composed  of  but  tive  members  will  not  affect  the  validity  of  the  proceedings, 
since  in  so  testifying  he  does  not  cease  to  be  a  member.  It  is  in  general,  however,  most 
undesirable  that  the  judge-advocate,  and  still  more  that  a  member,  should  appear  in  the 
capacity  of  a  witness,  except  perhaps  where  the  evidence  to  be  given  relates  simply  to 
the  good  cliaracter  or  record  of  the  accused.     Ibid.,  p.  7.'j0,  par  5. 


FAIDENCK.  261 

witnesses,  or  by  tlie  admission  of  the  proposed  witness,  or  by  his  own  testi- 
mony given  under  the  sanction  of  a  peculiar  form  of  oatli  known  as  the  voir 
dire.  Whetlier  the  election  of  one  of  these  modes  will  preclude  the  party 
from  afterwards  resorting  to  the  other  is  not  clearly  settled  by  the  authori- 
ties. If  the  evidence  offered  aliunde,  to  prove  the  interest,  is  rejected  as 
inadmissible,  the  witness  may  then  be  examined  on  the  voir  dire.  And  if 
the  witness  on  the  voir  dire  states  that  he  does  not  know,  or  leaves  it 
doubtful  whether  he  is  interested  or  not,  his  interest  may  be  shown  by  other 
evidence.  It  has  also  been  held  that  a  resort  to  one  of  these  modes  to  prove 
the  interest  of  a  witness  on  one  ground  does  not  preclude  a  resort  to  the 
other  mode  to  prove  the  interest  on  another  ground.  But,  subject  to  these 
moditications,  the  rule  recognized  and  adopted  by  the  general  current  of 
authorities  is  that  where  the  objecting  party  has  undertaken  to  prove  the 
interest  of  the  witness  by  interrogating  him  upon  the  voir  dire.,  he  shall  not, 
upon  failure  of  that  mode,  resort  to  the  other  to  prove  facts  the  existence  of 
which  was  known  when  the  witness  was  interrogated.  The  party  appealing 
to  the  conscience  of  a  witness  offers  him  to  the  court  as  a  credible  witness; 
and  it  is  contrary  to  the  spirit  of  the  law  to  permit  him  afterwards  to  say 
that  the  witness  is  not  worthy  to  be  believed.  It  would  also  violate  another 
rule  by  its  tendency  to  raise  collateral  issues.  Xor  is  it  deemed  reasonable 
to  permit  a  party  to  sport  with  the  conscience  of  a  witness  when  he  has 
other  proof  of  his  interest.' 

OPINIONS.       EXPERT    TESTIMONY. 

Opinion — Experts. — As  a  rule,  testimony  in  the  nature  of  opinion  is 
excluded.'  This  for  the  reason  that  witnesses  are  required  to  testify  to  facts 
only,  leaving  to  the  court  the  duty  of  deducing  conclusions,  or  of  forming 
opinions  as  to  the  effects  or  consequences  of  such  facts.  There  are  two 
exceptions  to  this  rule,  however,  to  which  attention  will  now  be  drawn.  In 
the  tirst  place,  any  intelligent  witness  may  testify  as  to  opinions  which  are 
themselves  conclusions  drawn  from  numerous  facts  within  the  daily  observa- 
tion and  experience  of  all  intelligent  persons.  Such  relate  to  the  appearance 
or  demeanor  of  a  person;  his  sanity,  sobriety,  or  identity,  or  his  resemblance 
to  another;  his  physical  condition,  whether  sick  or  well;  his  condition  as 


'  I.  Greenleaf,  J^  423.  Vnd.  4-23.  uote  6;  Evans  vs.  Eaton.  Pet.  C.  C,  322;  The 
Wiitcliinan,  Wiire.  ','32;  Mile<  w.  Y.  S..  13  Otto.  304;  Citizens' Bank  vs.  Nantucket 
Steam  heat  Co..  2  Story.  16. 

Witnesses  wlio  are  prima  fucie  competent,  but  wliose  competency  is  disputed,  are 
allowed  to  give  evidence  on  tlieir  voir  dire  to  the  court  upon  .some  collateral  issue  on 
■which  tlieir  competency  depends  ;  but  the  testimony  of  a  witness  who  is  vritmi  facie 
incompt^tent  cannot  he  given  to  the  jury  upon  tlie  very  i.ssue  of  the  c:i.<e  in  order  to 
estalilisii  his  competency  and.  ;it  the  sjuue  time,  prove  tlie  i.ssue.  Miles  r.v.  I'.  S.,  13 
Otto,  304. 

-  Cameron  vs.  State.  14  Ala..  546  ;  Com.  rs.  Mooney.  i;0  Mass.,  90  .  Com.  vs.  Sturte- 
vant.  117  Maas.,  122  ;  3Iorse  vs.  State.  6  Conn  ,  9. 


262  MILITARY  LAW. 

ref^ards  emotion  or  passion,  as  to  anger,  hope  or  fear,  joy  or  sorrow,  excite- 
ment or  coolness,  and  the  liiie.  These  are  matters  of  every-day  occurrence 
as  to  wliich  all  thoughtful  persons  form  conclusions  of  fact  to  which  they 
are  competent  to  testify  in  a  proper  case.'  Second,  the  opinion  of  experts 
in  an  art,  trade,  or  profession  in  which  they  have  attained  especial  profi- 
ciency may,  at  the  discretion  of  the  court  and  under  its  direction,  be  given 
in  evidence.  This  is  permitted  for  the  reason  that  the  opinions  in  question 
are  technical  or  scientific  in  character  and  are  based  upon  experience  that  is 
beyond  the  knowledge  or  exjierience  of  the  average  juror.  Under  this  liead, 
for  example,  fall  opinions  as  to  the  effects  of  particular  poisons;  that  is, 
certain  symptoms  having  been  observed,  expert  opinion  may  be  received  as 
to  the  poisons  that  would  produce  such  effects.  In  general,  certain  facts  or 
effects  having  been  established  in  evidence,  the  testimony  of  experts  may  be 
admitted  as  to  the  causes  which  would  have  produced  such  effects,  or  as  to 
the  laws  of  nature  applicable  to  certain  causes  to  produce  particular  effects.* 
The  introduction  of  expert  witnesses,  however,  is  of  the  rarest  occurrence  in 
the  procedure  of  courts-martial. 

Procedure. — The  party  who  introduces  expert  witnesses  must  show  that 
they  are  experts  in  fact;  that  is,  that  they  actually  possess  the  technical  or 
Bcientific  knowledge  which  will  assist  the  jury  to  a  correct  understanding  of 
the  facts  in  a  case.'  Having  established  their  competency  and  the  necessity 
for  their  appearance,  they  may  give  opinions  as  to  certain  facts,  or  may 
testify  in  answer  to  a  hypothetical  question,  agreed  upon  by  the  parties  and 
approved  by  the  court,  the  answer  to  which  is  calculated  to  afford  the  jury 
the  assistance  of  Avhich  they  stand  in  need.' 

THP]  RULES  OF  EVIDENCE. 

Purpose  of  Rules  of  Evidence. — It  has  been  seen  that  the  rules  of  evi- 
dence have  to  do  Avith  determining  what  is  called  the  competency  of 
witnesses;  that  is,  of  deciding  whether  a  particular  person  shall  be  permitted 

iCom.  vs.  Stuitevant,  117  Ma.ss.,  122;  Campbell  ts.  State,  23  Ala.,  44  ;  Evaus  vs. 
People,  12  Mich.,  27  ;  McLean  rs.  State,  16  Ala. ,  672  ;  Messner  rs.  People,  45  N.  1 .,  1  ; 
People  ts.  Eastwood,  14  N.  Y.,  562.  r>  tut  n 

'Milwaukee  Railway  Co.  vs.  Kelloc;g,  94  U.  S.,  409;  Chicajjo  r.s.  Grccv,  9  Wall., 
726  :  Dexter  vs.  Hall,  15  Wall..  9  ;  Tninsportation  Line  rs.  Hope,  95  IT.  S.,  297;  People 
■Bs.  Bodine.  1  Denio,  282  ;  Woodin  vs.  People,  1  Parker,  464  ;  Cook  vs.  State.  4  Zabiis- 
kie,  843  :  State  vs.  Smith,  32  Mann  ,  369  ;  1  Green  Crim.  Reports,  241  ;  McCJowan  vs. 
American  Pressed  Tanbark  Co.,  121  U.  S.,  575;  Union  Ins.  Co.  vs.  Smiih,  124  lUd., 
405;  Forsyth  vs.  Dooliitle.  120  ihid..  73;  Gay  «•«■  Union  Mut.  Life  Ins.  Co.,  Blatch., 
143  ;  .lolly  vs.  Tcrre  Haute  Drawbridi?e  Co.,  6  McLean,  237.  An  officer  of  the  Quar- 
termaster Department  was  admitted  by  a  court-martial  to  testify  as  an  "  expert"  m 
regard  to  the  proper  performance  of  his  duties  by  a  chief  quartermaster  of  a  military 
department  lleLd  tliat  such  testimony  was  inadmissible  and  should  have  been  ruled 
out,  the  subject  being  one  retrulated  by  law  and  orders,  and  the  witness  being  in  no 
proper  sense  an  expert.     Dig,  .1.  A.  Gen..  400,  par.  26. 

=  Spring  Co.  vs.  Edirar,  9  Otto,  695  :  Carter  vs.  Baker,  1  Sawyer,  512. 

*Forsytli  vs.  Doolittle,  120  U.  S.,  73;  U.  S.  vs.  McGlue,  1  Curtis,  15;  Dexter  ««. 
Hall,  15  Wall.,  91. 


EVIDENCE.  263 

to  testify  at  all ;  aud  with  the  exclusion  of  certain  testimony  from  the  con- 
sideration of  the  jury  njwn  the  ground  that  it  is  likely  to  mislead  them  and 
to  confuse,  rather  than  to  make  clear,  the  issue  referred  to  them  for  trial. 
They  also  determine,  to  a  certain  extent,  the  credibility  of  witnesses,*or  the 
weigiit  that  is  to  ])(>  attached  to  their  testimony. 

Oral  and  Written  Testimony. — Tlie  challenges  and  pleadings  having 
been  completed  and  the  accused  arraigned,  each  party  in  turn  submits  the 
testimony  of  witnesses  in  proof  or  di.sproof  of  the  facts  composing  the  issue. 
The  oral  or  written  testimony  offered  in  support  of  the  case,  on  either  side, 
makes  up  the  evidence  upon  which  the  court  bases  its  finding  of  fact  in 
accordance  with  the  weight  of  evidence  submitted.  Testimony  is  classified, 
according  to  its  form,  as  either  oral  or  written.  Oral  testimony  is  that  given 
viva  voce  in  open  court.  Written  iediniouy  is  composed  of  matter  in  the 
nature  of  writings  or  documents,  and  these  may  be  presented,  as  will  pres- 
ently be  explained,  in  the  shape  of  originals  or  cojiies. 

Direct  and  Indirect — Real  Evidence. — Oral  testimony  is  classified 
according  to  its  nature  and  character,  and  is  said  to  be  direct  or  original 
when  the  witness  testifies  to  facts  observed  by  him  through  the  medium  of 
liis  senses.  It  is  said  to  be  indirect  when  the  witness  derives  his  knowledge 
as  to  particular  facts  from  the  observation  of  others  and  testifies  to  their 
declarations  or  statements  concerning  them.  Such  testimony,  as  will 
presently  be  shown,  is  called  hearsay,  and  is  in  most  cases  inadmissible. 
Feal  evidence  consists  in  the  production  in  court  of  objects  or  articles  that 
pertain  to  a  case  in  hearing,  in  order  that  the  court  may  be  enabled  to  make 
a  personal  examination  or  inspection  of  them,  or  that  witnesses  may  iden- 
tify them  or  illustrate  their  application  or  use  in  connection  with  a  matter 
in  issue.  Evidence  is  also  said  to  be  ioidirect  or,  more  properly  speaking, 
circumstantial  when  the  existence  of  a  fact  is  inferred,  by  a  process  of 
reasoning,  from  the  existence  or  non-existence  of  other  facts  established  in 
evidence  by  the  testimony  of  witnesses  or  by  the  production  of  documents.' 

In  addition  to  determining  the  competency  of  witnesses  and  the  credi- 
bility of  their  testimony,  the  rules  of  evidence  also  serve  to  determine: 

1.  The  relevancy  of  testimony,  that  is,  its  relation  to  the  issues  raised  by 
the  pleadings. 

'■2.  The  harden  of  proof ,  that  is,  to  designate  the  party  upon  whom  the 
obligation  rests  of  establishing  the  truth  of  each  issue  raised  during  the 
progress  of  the  trial. 

3.  The  quality  of  evidence  that  shall  be  submitted  or  received  in 
support  of  an  issue,  which  is  accomplished  by  requiring  the  best  evidence  to 
be  submitted  which  the  nature  of  the  case  will  admit  of. 


>  People  vs.  Kendall.  32  N.  Y.,  141  ;  Brig  Struggle  vs.  U.  S.,  9  Crancb,  71  ;  Bank  of 
U.  S    vs.  Corcoran,  2  Pet.,  121. 


264  MILITAHY  LAW. 

4.  The  amount  of  evidence  necessary  to  establish  the  facts  composing  the 
substance  of  a  particular  issue. 

I.    RELEVANCY    OF    EVIDENCE. 

Relevancy. — Evidence  must  he  relevant ;  that  is,  must  bear  directly  upon 
the  issue.'  The  issue  here  referred  to  is  that  obtained  by  an  application  of 
the  rules  of  pleading,  and  the  reason  for  the  rule  is  simple.  From  the 
nature  of  pleading  it  is  apparent  that  no  testimony  can  be  received  which 
does  not  tend  to  prove  or  disprove  the  facts  of  which  the  issue  is  composed. 
This  question  alone  engages  the  attention  of  the  court-martial,  to  the 
exclusion  of  every  other,  and  it  would  be  the  veriest  waste  of  time  were  the 
court  to  permit  other  testimony  to  be  heard. 

Relevancy  of  Facts. — A  fact  is  said  to  be  relevant  when  it  is  the  cause 
or  etfect  of  another  fact,  or  is  the  effect  of  the  same  cause,  or  is  the  cause  of 
the  same  effect."  Particular  testimony  is  said  to  tend  to  prove  a  fact  when, 
taken  in  connection  with  other  and  similar  testimony,  it  is  calculated  to 
establish  such  fact  in  evidence;  each  fact  so  testified  to  forming  a  link  in 
the  chain  of  proof  submitted  in  support  of  the  case  of  either  party  to  the 
action.  Testimony  as  to  collateral  facts  is,  as  a  rule,  inadmissible  unless 
the  burden  rests  upon  a  party  of  proving  intent  or  the  existence  of  partic- 
ular knowledge  on  the  part  of  a  person,  or  when  good  faith,  malice,  state  of 
mind,  or  bodily  health  is  in  question.  In  a  trial  for  desertion,  for  example, 
testimony  that  an  accused  purchased  a  ticket  for  a  distant  point,  or 
attempted  to  dispose  of  his  uniform,  or  to  exchange  it  for  civilian's  dress 
would  be  admissible  to  show  the  intent  of  not  returning,  which  is  essential  to 
the  offense  of  desertion.  So  the  fact  that  a  person  charged  with  receiving 
stolen  goods  from  A  had  received  similar  stolen  goods  from  B  or  0,  or  had 
received  stolen  goods  from  A  on  a  previous  occasion,  would  be  admissible  as 
showing  the  guilty  knowledge  which  is  an  essential  ingredient  of  the  offense 
of  receiving  stolen  goods.  Such  testimony  is  therefore  admitted,  to  a 
limited  extent,  to  furnish  the  basis  of  fact  from  which  the  court  may  deduce 
a  just  conclusion  as  to  the  specific  intent  with  which  an  offense  has  been 
committed. 

When  particular  testimony  is  objected  to  as  irrelevant,  it  may  be 
admitted  upon  the  statement  of  the  party  producing  it  that  its  relevancy 
will  apear  at  a  later  stage  of  the  proceedings.' 

'Turner  vs.  Fendall,  1  Crancli.  117;  Stringer  vx.  Young,  8  Pet.,  330;  Wiiiaiis  vs. 
N.  Y.  &  Erie  K.  II.,  21  How.,  «8  ;  U.  IS  vs.  Gihert,  2  Sumner,  19  ;  Lucas  rs.  Brook.s,  18 
Wall.,  436;  Polk  vs.  liobertson.  1  Overton  (Tenn.),  4o6. 

•  Stephen'.s  Digest  of  theLiiw  of  Evidenr-e,  p.  .\ii. 

'  U.  S.  rs.  Flowery,  1  S()rague,  loy.  If  evidence  tend'-,  in  :iny  degree,  to  establish 
the  existence  of  a  material  fad,  it  cannot  l)e  rejected  as  irrelevant,  l»iit  mnst  be  received 
in  connection  with  the  other  fact.>-  and  circumstances  of  the  case.  U.  S  vs.  Babcock,  3 
Dill.,  571.     The  admission  of  incompetent  or  irrelevant  ewdence  is  not  a  sufficient  rea- 


EyUJENCE.  265 


o 


Circumstantial  Evidence. — Although  positive  proof  in  a  criminal  action 
is  desirable,  it  is  not  al)solutely  necessary,  and  a  conviction  may  be  had  on 
circumstantial  evidence,  that  is,  evidence  in  which  the  guilt  of  the  accused 
is  inferred  from  his  acts  and  from  other  facts  established  in  evidence.  In  a 
case  depending  upon  circumstantial  evidence,  the  court,  in  order  to  convict, 
must  find  the  circumstances  to  be  satisfactorily  proved  as  facts,  and  must 
also  iind  that  those  facts  clearly  and  unequivocally  imply  the  guilt  of  the 
accused  and  cannot  reasonably  be  reconciled  with  any  hypothesis  of  his  inno- 
cence.'  Whenever  a  necessity  arises  for  a  resort  to  circumstantial  evidence, 
either  from  the  nature  of  the  inquiry  or  from  the  failure  of  direct  proof, 
objections  to  testimony  upon  the  ground  that  any  particular  circumstance 
is  irrelevant  or  of  an  inconclusive  nature  and  tendency  are  not  favored,  for 
the  reason  that  the  force  and  effect  of  circumstantial  facts  usually  and 
almost  necessarily  depend  upon  their  connection  with  each  other  or  with 
the  direct  proofs  in  the  case.' 

Character— Reputation. — The  term  cliai'ader,  as  used  at  common  law, 
is  not  synonymous  with  reputation  ;  this  for  the  reason  that  the  character 
of  a  person,  using  the  term  in  relation  to  his  disposition,  cannot,  from  its 
nature,  be  establislied  by  the  testimony  of  witnesses.  Its  outward  manifesta- 
tion, however,  in  the  reputation  which  a  person  enjoys  in  the  community  is 
a  fact,  and,  like  other  facts,  is  susceptible  of  observation  by  neighbors  and 
others  who  may  testify  as  to  such  reputation  in  a  pro])er  case.  Testimony 
as  to  character  is  in  general  inadmissible.  In  a  civil  action  it  rarely  occurs 
that  the  character  of  a  party  is  drawn  in  question;  in  a  criminal  trial,  how- 
ever, the  character  of  the  accused,  as  evidenced  by  his  reputation,  may 
become  an  element  of  importance  in  two  cases:  first,  when  the  evi- 
dence of  guilt  is  not  strong,  testimony  as  to  the  good  reputation  of  an  ac- 
cused may  be  admitted  to  strengthen  the  presumption  of  innocence;'  and 
second,  such  testimony  may  be  admitted  where  the  punishment  is  discre- 
tionary with  the  court,  with  a  view  to  reduce  the  sentence  imposed  upop 
conviction. 

son  for  reversing  !i  jiulginent  when  il  is  appurent  tliat  it  cannot  liave  affected  'lie  verdict 
or  the  tinding  in'jiiriously  to  the  plaintiff  in  error.  Mining  Co.  vs.  Taylor.  10  Otto.  37  ; 
Turner  vs.  Feiidall,  1  Cr.,  117.  If  irrelevant  evidence  has  heen  introduced  by  one  party, 
the  other  party  has  no  right  to  introduce  equally  irrelevant  evidence  in  rebuttal. 
Stringer  r.v.  Young,  8  Pet.,  ;520.  When  improper  \f;9.\.\m(m\  has  been  admitted  the 
ai)pellate  court  cannot  look  into  its  importance  or  operation,  but  tlie  veidict  founded 
upon  it  caiuiot  stand.     Snuth  vx.  Carringtou,  4  Cr. ,  62  ;  Cliurch  rx.  Ilubbart,  2  Cr  ,  187. 

'  Tlie  Robert  Edwards.  G  Wheat.,  187:  U.  S.  vs.  Douglass.  2  Blatch..  207:  V.  S.  vs. 
Martin.  2  McL..  256;  McGregor  rs.  The  State,  16  Ind.,  9;  Y.  S.  rs.  Goldberg,  7  Biss  , 
175;  U.  S.  rs  Babcock.  3  Dill.,  621  ;  U.  S.  vs.  Butler,  1  Hughes.  457  ;  U.  S.  vk.  Lyman, 
5  McL.,  513;  1  vs.  Wood,  14  Pet.,  430. 

»  U.  S.  vs.  Hartwell,  3  Cliff..  221  ;  Lawrences.  Dana,  4  Had.,  1  ;  U.  S.  rs.  Bark  Isla 
de  Cuba,  2  ihid.,  295. 

»Edgini:ton  vs.  U.  S.,  164  U.  S.,  361;  Brown  vs.  U.  S..  164  U.  S..  221:  State  rs. 
Ford,  3  Strobh.,  517,  note;  Fields  rs.  State,  47  Ala.,  603;  Storrs  vs.  People,  56  N.  Y., 
315:   People  vs.  Ashe,  44  Cal.,  288. 


266  .mLirAuy  LAW. 

Evidence  of  the  good  character,  record,  and  services  of  the  accused  as  an 
officer  or  soldier  is  admissible  in  all  military  cases  without  distinction — in 
cases  where  the  sentence  is  mandatory  as  well  as  those  where  it  is  discretion- 
arv  with  the  court.  For  while  such  evidence  cannot  avail  to  affect  the 
measure  of  punishment,  it  may  yet  form  the  basis  of  a  recommendation  by 
the  members  of  the  court,  or  induce  favorable  action  by  the  reviewing  officer 
whose  approval  is  necessary  to  the  execution  of  the  sentence.  AVhere  such 
evidence  is  introduced  the  prosecution  may  offer  counter-testimony,  but  it 
is  an  established  rule  of  evidence  that  the  prosecution  cannot  attack  the 
character  of  the  accused  till  the  latter  has  introduced  evidence  to  sustain  it, 
and  has  thus  put  it  in  issue.' 

It  is  also,  in  general,  competent  on  trials  by  court-martial  for  the 
accused  to  put  in  evidence  any  facts  going  to  extenuate  the  offense  and 
reduce  the  punishment,  as  the  fact  that  he  has  been  held  in  arrest  or  con- 
finement an  unusual  period  before  trial,  the  fact  that  he  has  already  been 
subjected  to  punishment  or  special  discipline  on  account  of  his  offense,  or 
the  fact  that  his  act  was,  in  a  measure,  sanctioned  by  the  act  or  practice  of 
superior  authority." 

Reputation,  How  Established.— As  has  been  observed,  the  testimony 
offered  in  support  of  character  is  that  of  persons  who  know  the  reputation 
of  the  accused  in  the  community  in  which  he  lives,  and  can  testify  as  to  the 
reputation  which  he  there  enjoys  for  sobriety,  integrity,  morality,  and  the 
like.'  Testimony  so  submitted  should  relate  to  character  as  indicated  ,in  the 
charge;  if  fraud  or  dishonesty  be  alleged,  testimony  as  to  integrity  is  appro- 
priate; if  a  crime  of  violence  be  charged,  testimony  as  to  good  disposition 
would  be  relevant.  Testimony  as  to  general  good  reputation  would  properly 
be  submitted  with  a  view  to  affect  the  discretion  of  the  court  or  reviewing 
authority  in  the  matter  of  leniency. 

II.    THE    BURDEN    OF    PROOF. 

How  Determined.— The  rules  as  to  the  burden  of  proof  are  necessary  to 
the  orderly  and  methodical  presentation  of  evidence  in  actions  at  law.  It 
has  been  seen  that  the  issues  referred  to  a  jury  for  trial  are  decided  in  civil 
actions  by  a  preponderance  of  proof,  and  in  criminal  cases  by  proof  sufficient 
to  establish  guilt  beyond  a  reasonable  doubt.  What  is  called  the  burdeti  of 
proof— th'dt  is,  the  task  of  establisliing  the  trutli  of  a  proposition  outlined 
in  the  pleadings— rests  primarily  upon  the  one  who  alleges  a  fact  or  makes 
the  contention  that  such  fact  exists. 


'  Di?.  .T.  A   Gen,,  394,  par.  4. 

^  im,  398.  par.  lo.  ,,  ^      „^^    .,  „.  .      .. 

^  State  V8.  O'Neal,  4  Iredell,  88;  U.  S.  vs.  Van  Sickle,  2  McL.,  219;  Klam  ^s^  State.  2a 
Ala.,  33;  People  vs  Mather,  4  Wend.,  231;  Hamilton  vs.  People,  29  Mich.,  1*3;  State 
vs.  Howard,  9  N.  H.,  485. 


EVIDENCE.  267 

Burden  of  Proof  in  Criminal  Trials. — In  a  criminal  trial  the  burden  of 
})roijf  uuver  ahift.s,  but  rt'.sts  \\\n)\i  the  prosecution  of  erftabli.shiug  in  evidence 
tiie  facts  constituting  the  oll'ense  as  set  fortli  in  the  indictment.'  The 
accused  goes  to  trial  with  the  benefit  of  the  presumi)tion  that  he  is  innocent, 
which  attends  him  througliout  the  trial;  but  when  tlie  prosecution  has  suc- 
ceeded in  establisliing  the  facts  constituting  guilt,  by  the  testimony  of 
competent  and  credible  witnesses,  the  defense  is  required  to  meet  and  rebut, 
or  disprove,  the  facts  established  in  evidence  by  the  prosecution.'  In 
collateral  issues  arising  in  the  course  of  the  trial  as  to  tlie  competency  of 
witnesses,  the  admissibility  of  testimony,  and  the  like,  the  burden  of  proof 
rests  upon  the  party  who  alleges  incompetency  or  objects  to  the  admission 
of  particular  testimony.' 

III.    THE    BEST    EVIDENCE, 

The  Best  Attainable  Evidence  must  be  Submitted. — This  rule  is  calcu- 
lated to  prevent  fraud,  and  to  enable  the  court  to  base  its  finding  upon  the 
best  attainable  evidence  in  every  case.  All  evidence,  whether  oral  or 
written,  is  of  various  degrees,  or  orders,  in  point  of  primariness  and 
originality.  If  a  witness  testify  as  to  facts  which  he  has  heard  or  seen,  or 
if  the  original  of  a  document  be  produced,  such  testimony  is,  in  the  nature 
of  the  case,  the  best  attainable,  and  is  said  to  constitute  primary  evidence. 
If,  on  the  other  hand,  the  witness  testifies  to  facts  the  knowledge  of  which 
he  has  gained  from  another,  or  if  a  copy  of  a  document  be  submitted,  or  if 
neitlier  the  original  nor  a  copy  be  forthcoming  and  the  contents  of  the 
paper  be  testified  to  orally,  such  evidence  is  not  the  best,  and  is  said  to  be 
secondary  or  derivative.  In  some  cases,  as  where  the  testimony  is  pure 
hearsay,  it  is  rejected ;  in  others,  especially  in  the  case  of  documents,  it  is 

'Lillienthal  m.  U.  S.,  97  U.  S.,  237;  Potter  vs.  U.  S..  155  U.  S.,  438;  Agnew  vi. 
U.  S.,  165  U.  S..  36. 

*  Agnew  vs.  U.  S.,  165  U.  S.,  36;  Coffin  vs.  U.  S..  156  ibid.  432. 

^  Lillienthiil  vs.  U.  S.,  98  U.  S.,  237.  Where  the  court  cliarged  the  jury  that,  when  the 
prosecution  had  made  out  a  prima  facie  case,  the  burden  of  proof  was  on  thedefeudaut  to 
restore  hira  to  that  presumption  of  innocence  in  which  he  was  at  the  commeucenient  of 
the  trial,  it  was  held  that  the  instruction  was  erroneous,  and  tiiat  the  jury  should  have 
been  told  that  the  burden  was  ou  the  commonwealth  to  establish  the  guilt  of  the  defend- 
ant, and  that  he  was  to  be  presumed  innocent  unless  the  whole  evidence  in  the  ca.se  satis- 
fieil  them  of  his  guilt.  Commonwealth  vs.  Kimball,  2-1  Pick.,  366.  "When  the  matter 
of  defense  set  up  by  the  accused,  liowever,  is  wholly  and  entirely  disconnected  with  the 
bndy  of  the  crime  charged,  the  burden  of  proof  rests  upon  the  accused.  State  r«. 
Murpiiy,  33  Ind.,  270.  So,  too,  where  the  subject  matter  of  a  negative  averment  relates 
to  the  defendant  personally,  or  is  peculiarly  within  his  knowledge,  the  averment  will  be 
taken  as  true  unless  disproved  by  him.  State  vs.  McGlynn,  34  N.  H.,  422;  Com.  vs. 
Knapp,  9  Pick.,  496;  Com.  vs.  James.  9  Pick.,  375;  I\Iadden  vs.  State,  1  Kan.,  340.  A. 
for  example,  is  indicted  for  bigamy  ;  he  wishes  the  court  to  believe  that  at  the  time  of 
the  first  marriage  lie  was  a  minor.  The  burden  of  proof  to  establish  minority  is  upon 
A.  B.,  charged  with  theft,  wishes  the  court  to  believe  that  at  the  time  of  tlie  coinmis- 
sion  of  the  theft,  he  was  elsewhere.  The  burden  of  establishing  the  alibi  rests  upoQ  B. 
Stephen  on  Evidence, 


268  MILITAEY  LAW. 

accepted  upon  proof  by  the  party  otTering  it  that  it  is  the  best  evidence 
attainable ;  that  is,  that  the  original  lias  been  lost  or  destroyed,  or  is  in  th« 
possession  of  the  opposite  party  or  in  that  of  a  person  beyond  the  jurisdic- 
tion of  the  court. 

Hearsay. — What  is  called  hearsay  testimony  is  inadmissible.  Hearsay 
testimony  is  that  obtained  from  a  witness  who  has  not  himself  observed  the 
facts  to  which  he  testifies,  but  whose  knowledge  of  tliem  is  gained  from  the 
•tatements  of  others.  Hearsay  is  objectionable  for  several  reasons:  Jirst, 
because  it  is  secondary,  and  the  law  requires  primary  evidence — the  best 
evidence  attainable — in  every  case;  second,  the  real  witness  is  not  testifying 
in  court,  under  the  sanction  of  an  oath;  and  third,  the  opposite  party,  and 
especially  the  defendant  in  a  crimiixal  case,  has  no  opportunity  to  be  con- 
fronted wnth  the  witnesses  against  him  or  to  exercise  the  right  of  cross- 
examination.'  There  are  some  necessary  exceptions  to  this  rule,  and  there 
are  some  apparent  exceptions  which,  upon  close  examination,  will  be  found 
to  relate  to  relevant  facts  and  to  be,  as  such,  not  liable  to  objection  as  hear- 
say.    The  principal  exceptions  are: 

1.  Confessions. — One  form  of  criminating  testimony,  known  as  confes- 
sions, has  always  been  received  from  accused  persons  in  criminal  cases. 
*'  Subject  to  the  cautions  to  be  observed  in  receiving  and  weighing  confes- 
sions of  guilt,  they  are  among  the  most  effectual  proofs  in  the  law.  Their 
value  depends  on  the  supposition  that  they  are  deliberately  made,  and  on 
the  presumption  that  a  rational  being  will  not  make  admissions  prejudicial 
to  his  interest  and  safety,  unless  when  urged  by  the  promptings  of  truth 
and  conscience."  * 

The  most  common  form  of  confession  is  that  afforded  by  the  plea  of 
guilty  made  by  the  accused,  in  answer  to  an  indictment,  with  full  knowl- 
edge of  the  legal  consequences  that  will  ensue.  Confessions  may  be  made 
by  a  plea  of  guilty,  as  above  described,  or  by  a  statement  made  in  open 
court  by  or  in  behalf  of  the  accused;  if  made  elsewhere,  they  may  be  testi- 
fied to  by  those  who  heard  them,  or  to  whom  they  were  addressed,  if  made 
under  such  circumstances  as  to  make  it  clear  that  the  admissions  of  guilt 
■were  entirely  voluntary."  Any  evidence  going  to  show  that  a  confession 
was  extorted  by  means  of  threats  or  promises,  or  by  the  use  of  force, 
especially  by  a  person  in  authority,  will  completely  destroy  its  evidential 
value.*     When  offered  under  the  conditions  above  described  a  confession 


'  Queen  vs.  Hepburn,  7  Cr.,  290;  Ellicott  m.  Pearl.  10  Pet.,  412. 

'U.  S.  V8.  Montgomery,  3  Sawy..  544;  U.  S.  vs  Williams,  1  Cliff.,  5;  U.  S.  vs.  Wil- 
son. 1  Bald.,  78;  Yolm,  Jr.,  vs.  Wash  Ty.,  1  Wash  Ty.,  63. 

»  U.  S.  vs.  Kurtz.  4  Cranch  C.  C.  682;  U.  S.  vs.  Williams,  1  Cliff.,  5;  U.  S.  vs.  Griff, 
14  Blalch.,  381;  U.  S   vs.  Nott,  1  McLean,  499;  U.  S.  vs.  Coons,  1  Bond,  1. 

*U.  S.  vs.  Pumphrev.  1  Cranch  C.  C,  74;  U.  S.  rs.  Hunter,  ibid.,  317;  U.  S.  vt. 
Negro  Charles,  2  ibid.,'7G;  U.  S.  vs.  Pocklington.  ibid..  293;  Berry  rs.  U.  S..  2  Colo. 
Ty.,    186.     A  confession  is  competent  evidence  wlien   free  and  voluntary  ;  otherwise 


EVIDEyCE.  -'^5^ 

must  be  received  in  its  entirety,'  and  weight,  must  be  attached  to  those  parts 
which  weigli  for  the  accused  as  well  as  thcce  which  operate  to  his  prejudice. 

{Corroboration. — A  mere  confession  not  made  in  open  court,  or  otherwise 
corroborated,  and  without  proof  aliunde  that  a  crime  has  been  committed, 
will  not  justify  a  conviction.' 

Proof  of  Facts  obtained  through  an  Inadmisxibh  Confession. — Where  an 
inadmissible  confession  leads  to  the  discovery  of  a  fact,  so  much  of  the 
inadmissible  confession  as  relates  to  such  fact  may  be  received.'  It  has  also 
been  held  that  testimony  obtained  as  a  result  of  an  inadmissible  confession 
is  both  competent  and  rocci ruble. 

2.  Declarations;  Admissions  against  Interest. — Acts,  declarations,  and 
conduct  of  tlie  defendant  on  the  occasion  of  the  commission  of  an  offense 
are  to  be  considered  as  indicia  of  his  guilt  or  innocence.  Where,  however, 
an  offense  against  the  law  is  shown  to  have  been  committed,  the  law  raises 
a  presumption  of  guilty  intent.  This  presumption  cannot  be  overthrown 
by  the  declarations  of  the  accused  made  after  the  commission  of  the  offense, 
and  such  declarations  cannot  be  proved.* 

Dying  Declarations. — A  dying  declaratioji  is  an  ante-mortem  statement 
made  by  the  declarant  in  relation  to  the  injury  from  which  he  is 
suffering.  The  statement  is  receivable  in  evidence  in  a  trial  for  the 
murder  or  manslaughter  of  the  declarant,  and  only  when  made  in 
view  of   impending  death  and  when  he  no  longer  cherishes  any  hope  of 

where  made  through  the  influence  of  hope  or  fear*  So  where  an  officer  admitted  to  a 
superior,  in  writiiii;.  the  connnissiou  of  a  niilitarj' offense,  and  promised  not  to  repeat  the 
same,  umler  llie  well-founded  liojx-  and  belief  that  a  cliarge  wiiicli  had  been  preferred 
against  liim  tlierefor  would  be  willidrawn.  Iield  that,  in  case  he  were  aciually  brought  to 
trial  upon  such  charge,  the  admission  thus  made  would  not  properly  be  received  in  evi- 
dence against  his  objection.  Confessions  made  by  private  soldiers  to  oflicer.'^  or  non- 
commissioned officers,  though  not  shown  to  have  been  made  under  the  influence  of 
promise  or  threat,  should  yet,  in  view  of  the  nnlitary  relations  of  the  parties,  be  received 
with  caution. t  Mere  silence  on  the  part  of  an  accused  when  questioned  as  to  his  sup- 
po.sed  offense  is  not  to  be  treated  as  a  confession. f     Dig.  J.  A.  Gen.,  ;?97,  par.  13. 

A  confession  that  he  had  deserted  made  by  an  alleged  deserter  to  a  jjolice  officer, 
who  on  arresting  him  assured  him  that  if  he  told  the  truth  he  (the  officer)  would  give 
him  an  opporturnty  to  escape  before  being  delivered  up  to  the  military  authorities, 
held  clearly  not  admissible  in  evidence,  ns  having  been  induced  by  promise  of  favor  on 
the  part  of  a  person  in  authoriiv.     Ibid.,  399,  p:ir.  20. 

'  U.  S.  vs.  Pryor.  o  Cr.  C.  C.,  37:  U.  8.  rs.  Barlow.  1  ihid..  94. 

« Territory  r«.  McLinn,  1  Mont.  Terr.,  394;  Bergen  vs.  People.  17  111.,  426;  String, 
fellow  TS  State.  26  Miss.,  157;  Brown  vs.  State.  32  Miss.,  433;  .Jenkins  vs.  State,  41 
Mi.ss  .  582;  Anderson  rs.  State,  26  Ind.,  89;  State  vs.  Guild,  10  N.  J.  L.,  163. 

'  Stale  vs.  Vaigneur,  5  Kich.,  391 ;  White  vs.  State,  3  Ileisk.,  338;  Jordan  vs.  State,  32 
Miss.,  382;  Belote  vs.  State.  36  ibid..  96;  McGlotherlin  vs.  State,  2  Cold,  (Tenn,).  223; 
Frederick  vs.  State,  3  West  Va.,  695;  People  rs.  Ah  Ki,  20  Cal..  177;  Done  vs.  People, 
ibid.,  321;  Duffy  vs.  Peoj.le,  5  Parker,  364;  Com.  rs,  Janus.  99  Mass.,  438. 

*  U.  S.  vs.  Imsand,  1  Woods,  5"^!;  U.  S.  r*.  Hanway.  2  Wall,  Jr.,  139. 


*  United  States  va.  Puinplirevs,  1  Cranch  C.  C.,  74:  I'nite.l  States  vs.  Hunter,  id..  ,317;  United  States 
vx.  Charles,  2  id.,  76;  United  States  vx.  Pocklington,  id.,  :.'93;  United  States  i\v.  Nott,  1  McLean.  499; 
United  Stafs  vs.  (??ooper,  Z  Qu,   I,.,  ,1,,  4'J 

t  See  (tfneral  (,"<>\irt-Tiiartial  Orders,  No.  .3,  War  Department,  1876;  General  Orders,  No.  54,  Depart- 
ment of  Dakota.  1867.     Compare  Cady  vs.  .State,  44  Miss.,  332. 

J  See  Campbell  vs.  State,  55  Ala.,  80. 


270  MILITARY  LAW. 

recovery.  In  this  case  the  sense  of  impending  death  is  held  to  replace  the 
sanction  of  an  oath,  and  for  this  reason  the  statement  will  not  be  received 
if  it  api")ears  that  the  declarant  cherishes  any  hope,  however  slight,  of  ulti- 
mate restoration  to  health.  Tiie  competency  of  the  declarant  as  a  witness, 
and  the  sufficiency  of  his  statement,  are  determined  by  the  court,  wliich, 
after  hearing  all  the  facts,  admits  the  statement  or  rejects  it  as  not  proj)er 
to  be  submitted  to  the  jury.' 

RES    GESTiE. 

Res  Gestae. — A  form  of  testimony  remains  to  be  described  which  con- 
forms to  the  definition  of  hearsay,  because  it  consists  of  the  admissions, 
statements,  and  other  utterances  of  accused  persons  or  interested  parties 
which  are  testified  to  by  those  who  heard  them.  Sucli  testimony,  as  will 
presently  be  shown,  is  not  hearsay,  or  secondary,  but  primary,  or  original, 
in  character.^ 

What  Constitutes  Res  Gestae. — If  the  several  acts  or  events  which  con- 
stitute a  cause  of  action  or  a  criminal  offense  be  analyzed,  or  separated  into 
their  constituent  elements,  it  will  be  seen  that  they  consist  in  part  of  acts  and 
in  part  of  oral  declarations  or  statements,  and,  in  some  cases,  of  exclama- 
tions or  other  expressions  of  emotion  or  feeling.  These  utterances  are  as 
essential  to  the  crime,  or  cause  of  action,  as  are  the  other  acts  of  which  it  is 
composed.  They  are,  indeed,  verbal  facts,  and  as  such  may  be  testified 
to  by  witnesses  who  observed  them  or  in  whose  presence  or  hearing  they 
were  uttered.  They  consist  in  general  of  oral  declarations  or  admissions, 
but  may  take  the  form  of  written  entries  in  certain  cases  to  be  explained 
hereafter.^ 

When  Admissible. — The  rule  applies  to  the  statements  of  a  partner 
whose  declarations  bind  the  firm  of  which  he  is  a  member;  to  the  represen- 
tations of  an  agent,  which,  within  the  scope  of  his  agency,  are  binding  upon 
his  principal ;  to  the  confessions  of  accused  persons ;  and  to  the  utterances  of 
a  conspirator  which,  if  made  in  furtherance  of  the  common  purpose,  are 
binding  upon  co-conspirators.  It  also  ap})lies  to  the  case  in  which  the  fact 
in  question  is  as  to  whether  a  particular  statement  was  or  was  not  made, 
its  truth  or  falsehood  being  a  matter  of  secondary  importance.  The  rule 
has  an  extensive  application  in  criminal  cases.     For  example :  A,  by  acci- 

'  Carver  vs.  U.  S  ,  164  U.  S.,  694;  Jolinson  vs.  State,  17  Ala.,  618;  Thompson  vs. 
State,  24  Ga..  297  ;  People  vs.  Vernon,  35  Coe,  49;  Com.  vs.  Carev,  12  Cusliing  (Mass.), 
246  ,  Com.  m.  Cooper,  5  Allen  (Mass.).  495  ;  Nelson  vs.  Slate,  7  Humph.  (Tenn.),  542  ; 
Smith  vs.  State,  9  ibid.,  9  ;  U.  S.  vs.  Woods,  4  Cranch  C.  C,  484;  People  rs.  Lee,  17 
CaL,  76. 

'  Beavor  vs.  Taylor,  1  Wall.,  637;  Ins.  Co.  vs.  Mosley,  8  Wall.,  897;  Ins.  Co.  vs. 
Weide,  9  Wall.,  677;  James  vs.  Wliarton,  3  McLean,  492;  Bacon  vs.  Charlton.  7  Cush., 
586;  Smith  vs.  Shoemaker,  17  Wall.,  630. 

2  .James  vs.  Wharton,  2  McLean,  492  ;  Ins.  Co.  vs.  Weide,  9  Wall.,  677  ;  Greenleaf 
Evid.,  §  143. 


EVIDENCE.  271 

dent,  discharges  a  pistol  and  wounds  B;  A  gives  expression  to  an  exclama- 
tion of  horror  the  instant  that  the  result  of  liis  act  is  made  known  to  him. 
Such  exclamation  is  a  verbal  fact,  and  as  such  forms  an  essential  part  of  the 
transaction.  B  stabs  C,  and,  as  he  inflicts  the  wound,  exclaims,  "  Take 
that,"  or  "  Now  we  are  even,"  or  words  of  similar  elfect;  in  this  case,  also, 
the  exclamation  is  an  essential  ingredient  of  the  oHense.  If,  however, 
A  shoots  aiul  kills  B,  and  some  time  after  the  event,  when  he  has  had  time 
to  arrange  a  theory  of  defense,  expresses  regret  at  the  occurrence,  it  is 
obvious  that  such  expression  of  regret,  if  offered  in  evidence,  should  be 
rejected.' 

Rule  as  to  Admission. — The  rule  governing  the  admission  of  such  state- 
ments is  that  they  are  receivable  when  they  are  strictly  contemporaneous 
with  and  form  an  essential  part  of  the  event  to  which  they  relate,  and  not 
otherwise.  Whether  they  are  or  are  not  contemporaneous  is  a  question  for 
the  court  to  decide.  Under  this  head  falls  testimony  as  to  the  information 
under  which  a  persons  acts;  statements  or  declarations  in  regard  to  bodily 
health ;  expressions  of  feeling ;  statements  in  regard  to  pedigree  or  relation- 
ship, or  to  the  facts  in  regard  to  birth,  marriage,  or  death;  declarations  of 
a  testator;  inscriptions  on  monuments  or  tombstones;  entries  in  family 
Bibles,  charts,  pedigrees,  or  the  like,'  The  court  in  every  case  will  determine 
the  question  of  admissibility,  and  will  satisfy  itself  that  the  testimony 
offered  is  the  best  attainable  before  allowing  it  to  be  entered  upon  the  record. 

IV.    SUBSTANCE    OF   THE    ISSUE.       DEPARTURES. 

The  Substance  of  the  Issue  only  Need  be  Proven. — By  the  substance  is 
meant  the  material  or  essential  part,  as  indicated  in  the  pleadings  upon  which 
issue  has  been  joined.'  In  the  application  of  this  rule  a  distinction  is  made 
between  matter  of  substance,  which  pertains  to  an  issue,  and  matter  of 
description.  The  latter  must  be  proved  as  alleged;  the  former,  as  to  its 
legal  or  material  part  only.  This  rule  is  somewhat  more  strictly  enforced 
in  criminal  than  in  civil  actions,  as  personal  rather  than  property  rights  are 
there  drawn  in  question.* 

For  example:  A  is  charged  with  the  larceny  of  a  horse,  the  property 
of  B.  It  is  sufficient  in  the  indictment  to  allege  that  a  horse,  the  property 
of  B,  was  feloniously  taken  by  A  with  intent  to  convert  the  same  to  his  own 
use.     If  the  indictment  describes  the  animal  as  a  black  horse,  the  color 


'  People  rs.  McMiUion,  15  X.  Y.,  884  ;  Pliillips  vx.  People,  57  Barber,  353  :  Com.  vs. 
Keyes.  11  Gray,  323;  State  vs.  Mabon.  3'3  Vt.,  241  ;  Smilli  vs.  State,  41  Tex.,  352; 
Kincen  vs.  State.  50  lud.,  557;  People  rs.  Simonds,  19  Cal..  275. 

'>^\J.  S.  vs.  Howard,  3  Sumuer,  12;  U.  S.  vs.  Foye,  1  Cusb.,  364;  Wilson  r*.  Codman, 
3Crancb,  193. 

»  I.  Greenleaf.  g§  108,  123. 

'^  Ibid.,  %%  56-73. 


27-2  MILITARY  LAW. 

must  be  proven ;  and  if  tlie  horse  proves  to  be  white,  the  variance  is  fatal. 
So,  too,  if  A  be  charged  with  the  larceny  of  two  bank-notes  of  a  certain 
denomination,  it  is  enough  to  allege  the  larceny  of  two  bank-notes  each  of 
the  denomination  of  live  dollars,  and  to  prove  the  felonious  taking.  If, 
however,  the  notes  be  described  by  the  names  of  the  banks  of  issue  and  the 
names  and  titles  of  the  officers  who  signed  them,  such  description  will  have 
to  be  proved  as  alleged.  A  departure  from  the  allegations  of  a  pleading  in 
matters  of  description  is  called  a  variance,  and  is  fatal  unless  aided  by 
statute  in  the  jurisdiction  in  which  the  trial  is  had.' 


JUDICIAL    NOTICE. 

There  are  certain  facts  of  which  all  courts  take  what  is  called  judicial 
notice;  that  is,  accept  them  without  proof,  as  they  are  alleged  or  referred 
to  in  pleading  or  argument  during  the  progress  of  a  trial.  This  is  done  as 
to  certain  facts  because  the  law  requires  it,  and  as  to  others  because  of  their 
notoriety  and  general  acceptance  by  the  community  at  large.  To  the 
former  class  belong  the  laws  which  the  court  applies  in  the  decision  of  the 
cases  before  it,  including  the  Constitution,  laws,  and  treaties  of  the  United 
States,  those  of  the  State  in  which  the  court  sits,  the  common  law,  the  law 
of  nations,  the  custom  of  merchants,  and  the  admiralty  or  maritime  law  of 
the  world.'  They  also  recognize  the  great  seal  of  the  United  States,  those 
of  the  several  States,  the  seals  of  courts  of  record  when  attached  to  their 
records,  orders,  and  decrees,  together  with  the  seals  of  notaries  public  and 
the  great  seals  of  foreign  States.  Under  the  latter  head  they  will  take 
judicial  notice  of  the  ordinary  divisions  of  time,  of  calendar  and  lunar 
months,  of  weeks  and  days,  and  of  the  hours  of  the  day ;  of  astronomical 
and  physical  facts;  of  the  laws  of  nature,  including  their  ordinary  operations 
and  consequences;'  of  the  government  of  the  United  States  and  those  of  the 
several  States,  with  their  principal  officers;  of  the  existence  of  foreign  States 
and  their  rulers;  of  war  and  peace;  and  of  the  great  facts  of  history  as 
recorded  in  the  works  of  writers  of  standard  authority.' 

The  Revised  Statutes;  Supplements.— The  law  of  the  United  States, 
which  is  applied  by  courts-martial  in  military  trials,  is  contained  in  the 


'  I.  (jreenlcaf,  §  65.  ^      ,  ,,    .,   ,^     ■,      co^ 

'Biid'^e  Prop.  ts.  Ilobokeii  Co.,  1  Wall.,  116;  U.  S.  nt.  Randall,  1  l>eady.  524; 
Evans  r.s  Cleveland  &  Piltsburir  R.  R.  Co  .  5  Phil.,  512  :  Gardner  vs.  The  Collector,  6 
Wall.,  499  ;  .Tones  v.i.  llay.s.  4  McL..  521  ;  Cheever  vs.  Wilson,  9  Wall.,  108;  Owings  vs. 
Hull.  9  Pel.,  607;  Course  vs.  Stead.  4  Dall.,  22,  note. 

2  Floyd  vs.  Ricks,  14  Ark,  286;  Dixon  vs.  Nicolls,  89  111.,  372;  Patterson  vs. 
McCausland.  3  Bland  (Md.),  69:  Mossman  ».9.  Forrest,  27  lud.,  233. 

*  Payne  vs.  Troadwell.  16  Cal.,  220;  Hart  vs.  Dodley,  Hard  (Ky.).^98  ;  Be  1  m 
Bamet.  2  .J.  J.  Marsh.  (Ky.),  516.  See,  also,  17  Myers  Fed.  Dec.  §§  2376-23. )4 ; 
V.  U.  S.  Dig.  (Ist  Ser.j,  484-491. 


EVIDENCE.  273 

Revised  Statutes'  and  tlie  autliorized  Supplements'  thereto,  and  in  the 
biennial  volumes  of  Statutes  at  Large,  containing  tlie  legislation  of  Congress 
which  has  become  law  since  the  enactment  of  the  Revised  Statutes  in  187-4. 
Courts-martial  take  cognizance  of  the  laws  of  the  United  States  which  are 
contained  in  the  volumes  above  referred  to,  when  read  from  books  ])ublished 
with  the  proper  authority.  Statutes  wliich  relate  especially  to  the  military 
establishmejit  may  be  taken  notice  of  when  read  from  the  General  Orders  of 
the  War  Department  in  wiiich  they  have  been  orticially  ])ublished  to  the 
Armv. 

The  Statutes  at  Large. — The  current  legislation  of  Congress  from  year 
to  year  will  be  found  in  the  volumes  called  Statutes  at  Large,  which  are 
published  biennially  with  the  authority  of  Congress.  These  volumes,  twelve 
of  which  have  appeared  since  the  general  revision  of  the  laws  in  ISTo, 
contain  the  public  aiul  private  statutes  enacted  since  December  1,  1873, 
together  with  all  treaties  and  conventions  with  foreign  powers  which  have 
acquired  the  force  of  law  during  the  same  2)eriod.     Each  volume  also  con- 


'  The  Revised  Statutes  are  an  Act  of  Congress  (Act  of  June  23,  1874,  18  Stat,  at 
Large,  113)  containing  snoh  statiUes  as  were  in  force  on  Decpmhcr  1,  1873.  Tiie 
enactment  was  approved  and  became  tlie  law  on  June 'J2,  1874.  The  |)ul)lication  thus 
sanctioned  and  authorized  is  known  a.s  the  First  Edition  of  the  Revised  Statutes  ;  it.s 
contents  were  embodied  in  the  Second  Edition,  present!}'  to  be  described,  whieh 
appeared  in  1878.  Wright  vs.  U.  S.,  13  C.  Cis.  R. ,  80.  In  case  of  doubt,  ambiguity,  or 
uncertainty  the  previous  statutes  may  le  referred  to.  Ibid.  See,  also  Bouen  «.  U.  S 
100  U.  S..  508.  U.  S.  rs.  Brown,  100  U.  S..  508;  Bate  Refrigerating  Co.  vs.  Sulzberger 
157  U.  S.,  1. 

The  Revised  Sfalules  must  be  accepted  as  the  law  on  the  .subjecis  which  they 
embrace  as  it  existed  on  the  first  day  of  December,  1873,  and  were  enacted  to  present  the 
entire  body  of  the  laws  in  a  concise  and  compact  form  When  the  language  of  the 
Revised  Statutes  is  plain  and  unambiguous,  the  grammatical  structure  siiiii)le  and 
accurate,  and  tlie  meaning  of  the  whole  intelligible  ami  obvious,  a  cnurt  is  not  at  liberty, 
by  construction,  to  reproduce  the  law  as  it  stood  before  the  revision.  U.  S.  vs.  Boweii 
100  U.  S..  508.     See,  also,  Wright  vs.  U.  S.,  15  C.  Cls.  R.,  80,  80. 

The  edition  in  general  use  is  the  second,  published,  with  the  authority  of  Congress 
iu  1878,  in  accordance  with  the  Act  of  March  2,  1877  (19  Stat,  at  Larire.  268).  '^The 
Second  Edition  of  the  Revised  Statutes  is  only  a  new  publication  ;  a  conipil.-iiion  con- 
taining the  original  law  wiih  specific  amendments  incorporated  therein  accordins:  to  the 
judgment  of  tlie  editor.  Wrisjlit  i:s.  U.  S.,  15  C.  Cls.  R.,  SO.  The  Revi-ed  Statutes  did 
not  atfect  statutes  passed  between  DecemUer  1,  1873,  anil  June  22,  1S74. 

The  First  Edition  of  the  Revised  Statutes  is  a  transcript  of  the  oriirinal  in  the  Slate 
Department.  It  is  /)rma /<tc/«  evidence  of  the  law,  but  the  oriirinaris  the  onlv  con- 
clusive evidence  of  the  e.xact  text  of  the  law.     Wriffht  vs.  U.  S.,  i5  C.  Cls.  R  .  80."  s7. 

»  Supplements.— 'S>\\\^\Ai-n\v\\lii  to  the  Revised  Statute-;  have  been  aiithoiized  from  time 
to  time  by  suitable  enactments  of  Cniigres<.  The  first  of  itie.se  wai^  tlie  Supjijement  of 
1881,  which  was  authorized  by  Joint  liesoluiioii  No.  44  of  June  7.  1880.  (21  Stat,  at  Larire, 
308,)  and  contains  all  le.ixislation  of  .-i  permanent  character  enacted  between  December 
1,  1873,  and  March  4,  1881  ;  this  work  was  subsetpiently  merged  in  the  Supt>lement  of 
1891.  The  Supplement  of  1891  was  authorized  by  the  Act  of  Api  il  9,  1890,  (26  Slat,  at 
Large,  50,)  and  contains  such  legislation  of  a  permanent  cliar;icter  as  wa*  enacted 
between  December  1.  189:!.  and  .March  4,  ISill  ;  this  work  is  now  known  as  Vohmie  I, 
Supplement  to  the  lievised  Slatiitcs  of  the  Inileil  States.  A  second  siipplementarv 
volume,  authorized  by  the  Act  of  February  27,  1893,  (27  Stat,  at  Large.  477.)  known  ii'-< 
Volume  II,  Supplement  to  the  Revi.sed  StJiiutes,  etc.,  has  been  published,  containing  all 
permanent  legislation  of  Congress  between  March  5,  1891,  and  March  4,  1895. 


274 


MILITAllT  LAW. 


tains  snch  proclamatious  as  were  issued  by  the  President  during  the  biennial 
period  to  -which  it  relates.' 

Evidential  Value. — It  is  provided  by  law  that  the  First  Edition  of  the 
Kevised  Statutes  "  shall  be  legal  evidence  of  the  laws  and  treaties  therein 
contained,  in  all  the  courts  of  the  United  States  and  of  the  several  States 
and  Territories."^  It  is  also  provided  that  the  Second  Edition  of  the 
Revised  Statutes  "  shall  be  legal  evidence  of  the  laws  therein  contained,  in 
all  the  courts  of  the  United  States  and  of  the  several  States  and  Territories, 
but  shall  not  preclude  reference  to,  nor  control  in  case  of  any  discrepancy, 
the  effect  of  any  Act  as  passed  by  Congress  since  the  first  day  of  December, 
eighteen  hundred  and  seventy-three."  ^  The  several  volumes  of  Supple- 
ments are  similarly  declared  to  be  ^^  prima  facie  evidence  of  the  laws  therein 
contained,  in  all  the  courts  of  the  United  States  and  of  the  several  States 
and  Territories  therein;  but  shall  not  jireclude  reference  to,  nor  control  in 
case  of  any  discrepancy,  the  effect  of  any  original  Act  as  passed  by  Con- 
gress."^ The  several  volumes  of  Statutes  at  Large  published  subsequent 
to  the  enactment  of  the  Eevised  Statutes  are  also  declared  to  be  "  legal  evi- 
7 

'  Tweaty-nine  volumes,  in  till,  of  Statutes  at  Large  have  been  published  siuce 
March  4,  1789. 

TABLE  SHOWING  THE  PERIOD  COVERED  BY  EACH  OF  THE  TWENTY-SEVEN  VOLUMES 

OF  THE  STATUTES  AT  LARGE. 


Stat.  L. 


Vol.    1. 
o 


3... 
4... 
5... 
6*. 

7t. 

8t.. 

9... 
10... 
11... 
12. . . 
13... 
14... 
1.x . . 


Period. 


From 


Mar.  4, 
Dec.  2, 
May  29, 
Dec.  1, 
Dec.  7, 
Mar.    4, 


1789 
1799 
1813 
1823 
18?.o 
1789 


Dec.  1, 

Dec.  1. 

Dec.  3, 

Dec.  5, 

Dec.  7, 

Dec.  4, 

Mar.  4, 


1845 
1851 
1855 
1859 
1863 
1865 
1867 


To 


Mar. 
Mar. 
Mar. 
Mar. 
Mar. 
Mar. 


3,  1799 
3,  1813 
3,  1823 
3,  1835 
3,  1845 
3,  1845 


j\Iar. 
Mar. 
Mar. 
Mar. 
Mar. 
Mar. 
Mar. 


3,  1851 
3,  1855 

3,  1859 

4,  1863 
4.  1865 
4,  1867 
4,  1869 


Stat.  L. 


Vol.  16 Mar 


17.., 

18.., 

19.. 

20.. 

21.. 

22.. 

23.. 

24.. 

25.. 

26.. 

27.. 

28.. 

29.. 


Period. 


From 


Mar. 

Dec. 

Dec. 

Oct. 

Mar. 

Dec. 

Dec. 

Dec. 

Dec. 

Dec. 

Dec. 

Aug. 

Dec. 


4,  1869 

4,  1871 

1,  1873 

6,  1875 
15,  1877 
18,  1879 

5.  1881 
3,  1883 

7,  1885 
5,  1887 

2,  1889 
7,  1891 
7,  1893 
2,  1895 


To 


Mar. 
Mar. 
Mar. 
Mar. 
Mar. 
Mar. 
Mar. 
Mar. 
Mar. 
Mar. 
Mar. 
Mar. 
Mar. 
Mar. 


4,  1871 
4,  1873 
4,  1875 

3,  )877 

4,  1879 
4,  1881 
3,  1883 
3,  1885 
3,  1887 

2,  1889 

3,  1891 
3.  1893 
3,  1895 
3,  1897 


'  Section  2.  Act  of  .June  20,  1894  (18  Stat,  at  Lnrge,  113). 

3  Section  4,  Act  of  March  2,  1877  (19  Stat,  at  Large,  268);  Act  of  March  9,  1878  (20 
ibid.,  27). 

*  .Joint  Resolution,  No.  44,  June  7,1880(21  Stat,  af  Large,  308);  Act  of  April  9. 
1890  (26  ibid.,  50);  Act  of  February  27,  1893  (27  ibid.,  477). 

*  Private  lav.s.  t  Itidiaii  tr«'atifs. 

i  European  treaties,  with  general  index  to  Vols.  I  to  VIII.  inclusive.  Statutes  at  Large. 


EVIDENCE.  27  rj 

dence  of  the  laws  and  treaties  tlierein  contained,  in  all  the  courts  of  the 
United  States  and  of  the  several  States  therein."  ' 

PUBLIC    DOCUMENTS. 

Public  Documents. — For  evidential  purposes  a  ])HMic  document  may  be 
defined  as  any  written  instrument  emanating  from  or  filed  or  recorded  in 
any  office  or  department  of  the  Government."  Under  this  head  are  included 
the  statutes,  resolutions,  and  other  acts  of  the  legislature;  the  treaties, 
proclamations,  orders,  regulations,  reports,  and  other  utterances  of  the 
Executive;  and  the  records,  judgments,  orders,  and  decrees  of  courts  of 
justice.  Every  public  document  pertains  to  or  is  said  to  be  of  record  in 
some  public  office,  the  chief  of  which  is  its  legal  custodian.  Public  docu- 
ments are,  as  a  rule,  so  far  regarded  as  confidential  that  they  are  not  subject 
to  examination  by  the  public  at  large  without  the  authority  of  law  or  the 
consent  of  their  legal  custodian.^ 

Production  of,  in  Evidence,  How  Secured. — When  it  becomes  necessary 
to  produce  a  public  document  in  court,  as  the  public  business  would  be 
delayed  and  considerable  inconvenience  caused  by  its  removal  from  the  files 
of  the  office  to  which  it  pertains,  secondary  evidence  of  its  contents  in  the 
form  of  copies  is  usually  furnished,  and  authenticated,  in  strict  conformity 
Avith  the  requirements  of  statutes,  by  the  seal  of  tlie  office  from  which  it 
emanates.  Copies  so  certified  are  given,  by  statute,  the  full  evidential  value 
of  originals.  For  this  reason  all  courts  of  record  and  the  several  executive 
departments  are  provided  with  seals  of  which  the  courts  take  judicial  notice 


'  Section  8.  Act  of  June  20,  1874  (18  Stat,  at  Large.  113) 

«  I.  Greeiiloaf.  §  470;  Wharton,  i;  639;  McCair^js  U.  S.,  1  Dak.,  321.  Where  a 
statute  requires  the  keeping  of  an  official  record  for  the  public  use,  by  an  officer  duly 
appointed  for  the  purpose  and  subject  not  merely  to  private  suit  but  to  official  prose- 
cution for  any  errors,  such  record,  so  far  as  entries  made  in  it  in  the  course  of  l)usiness. 
is  admissible  in  evidence  as  prima  farie  proof  of  the  facts  it  contains.*  Nor  is  it  neces- 
sary to  verify  such  record  by  the  oalii  of  the  person  keeping  it.  That  it  is  directed  bv 
statute  to  be  kept  for  the  public  benefit,  and  tliat  it  is  kept,  so  far  as  ajipears  on  its 
face,  with  regularity  and  accuracy,  entitles  it  to  be  received  in  eviiU-nce.  and  throws  the 
burden  of  impeaching  it  on  the  opposite  side.f  To  make  tlie  record  itself  evidence,  it 
is  only  necessary  that  it  should  be  produced,  and  that  it  should  be  proved  to  have  come 
from  the  proper  depo-itary  :}: 

*  I.  Greenh-af,  §^  471-478.  It  is  :in  established  general  rule  that  ;i  lipiid  of  a  Depart- 
ment of  tlie  Government  will  not  make  pul)]ic  or  furnish  copies  of  confidential  official 
reports  or  papers  the  disclosure  of  wliich  will  rather  prejudice  than  promote  the  public 
interests.  In  a  case  of  an  officer  of  the  Army  who.  having  been  dismissed  the  .service  by 
sentence  of  court-martial,  applied  to  be  furnished  with  Vopies  of.  or  to  be  allowed  to 
examine,  the  report  of  the  Judge-Advocate  General  and  the  remarks  of  the  General 
commanding  the  Army,  in  his  case. — advised  tiiat  the  application  be  not  acceded  to  by 
the  Secretary  of  War.  the  same  being  no  ]iart  of  the  record  of  trial  of  the  officer,  but 
confidential  communications  addressed  to  the  President  through  the  Secretary  of  War 
Dig.  J.  A.  Gen.,  691.  par.  5. 


•  I.  Wharton.  §§  120,  639.  649. 

1 1,  fireenleaf.  §  483;  I.  Wharton,  §  639;  Tcaylor,  §  1409. 

1 1.  Wharton,  §639,  and  cases  cited. 


276  MILITARY  LAW. 

when  attached  to  copies  or  exemplifications  of  documents  issuing  therefrom. 
As  has  been  said,  all  courts  are  required  to  take  judicial  notice  of  the  laws 
which  tliey  apply  in  the  decision  of  cases.  In  this  way  the  public  statutes 
of  the  United  States,  and  of  the  State  in  which  they  sit,  are  recognized  by 
courts  when  read  from  books  purportiug  to  have  been  published  by 
authority.  The  same  rule  applies  to  the  public  statutes  of  the  several 
States  of  the  Union.  Foreign  statutes  and  judgments  are  proven  by  copies 
under  the  great  seal  of  the  State  to  which  they  pertain,  or  by  the  certifica- 
tion of  an  officer  authorized  by  law  to  execute  copies  and  certify  to  their 
correctness.  Acts  of  magistrates,  and  in  some  cases  of  notaries  public,  must 
be  authenticated  by  the  seal  of  the  court  of  record  within  whose  territorial 
jurisdiction  they  act.' 

DOCUMENTARY    EVIDENCE. 

Documents. — A  document  is  a  statement  of  fact  in  a  written  instrument, 
or  anything  upon  which  inscriptions,  characters,  or  signs  have  been  recorded 
and  which  is  susceptible  of  use  as  evidence.  The  term  includes  deeds 
formally  executed  under  seal,  all  forms  of  written  or  printed  instruments, 
together  with  maps,  plans,  and  inscriptions  upon  monuments,  buildings, 
churches,  or  headstones.  The  writing  may  be  in  any  language  or  character, 
and  may  be  expressed  pictorially  or  in  the  language  of  signs.  Written 
instruments  are  classified,  according  to  their  source  and  authority,  into 
public  and  private  documents,  and,  according  to  the  formality  attending 
their  execution,  into  specialties,  or  instruments  under  seal,  and  writings  or 
documents  7iot  under  seal,  a  term  which  includes  all  other  writings  of  what- 
ever character.' 

From  the  point  of  view  of  evidence,  a  written  instrument  is  regarded  as 
of  the  highest  authority  upon  the  subject  to  which  it  relates;  and,  as  a 
jreneral  rule,  cannot  be  varied  or  contradicted  by  parol  testimony.'  If 
executed  under  seal,  no  testimony  will  be  received  which  is  calculated  to 
chano-e  its  meaning  or  to  modify  its  terms  in  the  slightest  degree,  the  pre- 
sumption being  that  if  a  person  reduces  a  proposition  to  writing,  under  the 
sanction  of  a  seal,  the  instrument  so  executed  must  be  held  to  embody  his 
fully  considered  views  as  to  the  subject  so  expressed  in  permanent  and 
enduring  form.  For  these  reasons  the  rules  of  evidence  attach  the  greatest 
vidue  to  documentary  evidence,  and  place  peculiar  safeguards  about  its 
introduction,  with  a  view  to  give  to  this  form  of  testimony  its  true 
evidential  value. 

Primary  and  Secondary  Evidence. — Written  evidence  is  derived  from 
documents,  and  is  said  to  be  either  jon'mar?/ or  secondary  m  character  or 


'  I.  Grocnleaf.  SS  470-490  :  Whiirton,  S§  317-321. 

2  Wharton  Crim.  Evirl..  519.  ^  I.  Greenleaf,  g§  275-277. 


EVIDENCE.  •-'« 

de^i^ree,  depending  upon  its  origimdily.  I'rininry  evidence  consists  in  the 
production  of  the  document  itself.  In  tlie  absence  of  the  primary  or  orig- 
inal document,  evidence  called  secondary  may  be  admitted  to  j)rove  its 
contents.  This  may  exist  in  several  degrees,  consisting  of  copies  of  the 
original,  or  in  parol  testimony  as  to  its  contents,  derived  from  witnesses  who 
are  familiar  therewith.  As  between  copies  of  a  document  produced  by 
printing,  photogra}ihy,  or  by  any  fac-simile  process,  all  are  })riniary  as 
resjjects  each  other,  but  all  are  secondary  in  their  relation  to  the  instrument 
of  wliich  they  2)urport  to  be  copies.'  The  production  of  written  evidence  is 
voluntani  when  done  by  a  party  in  his  own  interest,  or  compulsory  when 
required  by  the  court  in  obedience  to  its  order,  rule,  or  subpo-na.  When  a 
document  is  produced,  the  burden  of  identifying  it,  and  of  provini:  ilmt  it 
is  the  best  evidence  attainable,  rests  upon  the  party  in  whose  behalf  it  is 
produced. 

Copies  of  Public  Documents. — It  has  been  seen  to  be  a  fundamental  rule 
of  evidence  that  the  best  evidence  must  be  submitted  in  every  case.  This 
ap])lies  with  jierhaps  greater  force  to  documentary  evidence  than  to  oral 
testimony,  and  to  the  production  of  public  as  well  as  private  documents. 
In  its  application  to  public  documents,  however,  it  is  subject  to  the  qualifi- 
cation, presently  to  be  described,  that,  as  it  would  be  highly  detrimental  to 
the  public  interests  to  permit  original  documents  to  be  removed  from  the 
offices  in  which  they  are  of  record,  copies  of  such  documents,  made  in  a 
form  duly  prescribed  by  law,  are  received  in  evidence  as  to  the  facts  to  which 
they  relate,  and  are  given  by  statute  the  same  evidential  value  as  the  origi- 
nals themselves.' 

The  principal  forms  of  these  are:  First,  exemplifirations,  that  is,  tran- 
scripts of  records  or  judgments  under  the  great  seal  of  the  State,  or  the  seal 
of  the  court  from  which  the  judgment  issued  or  to  which  the  record  per- 
tains,' An  exemplification  has  the  same  evidential  value  as  would  tlie 
production  of  the  original  itself.     It  is  a  recognition,  in  the  most  solemn 

'  A  printed  c(ipv  of  a  manuscript  is  secondary  to  tlic  manuscript  itself,  wliicli  must 
be  produced  or  accounted  for.  l{cx  r«.  Watson,  32  IIow.  8late  Tri.,  SO.  IJiil  ilie 
several  priuted  copies  produced  by  a  single  impression,  and  issued  in  a  single  edition, 
though  secondarv  evidence  of  the  orii^inal,  are  primary  in  respect  to  each  other.  Hex  vs. 
Ellicombe.  ')  C. '&  P.,  522;  I.  Wharton.  )<  92.  Whether  photographs  of  \vritings  may , 
in  any  view,  be  treate(i  as  i>rimary  evicU'iice  may  be  doubted,  and  it  is  clear  that  when 
an  original  is  reipiired  the  original  must  be  produced.     I.  Wiiart.,  §  91. 

Strictly  speaking,  a  press  copy  is  secondary  to  the  original  document  from  wbicli  it 
is  taken.  Nodin  vs.  Murray.  W  ('amp,  228;  Chapin  vs.  Siger.  4  McL.,  ."78;  Marsh  vs. 
Hand,  3.5  Md.,  123.  The  fact  tiiat  a  party  keeps  letter  press  copies  of  letters  does  not 
obviate  the  necessity  of  jiroducing  the  origiiuils.  or  of  laying  tlie  foundation  in  tlie 
ordinary  and  \isual  way  for  .secondary  evidence.  Earl  V.  Foot  vs.  Beutky.  44  N.  Y., 
171.  Such  a  copy  is  receivable  on  the  loss  of  the  origiiuil.  Goodrich  vs.  Weston.  102 
Mass.,  3(52;  I.  Whart.,§^  72,  92,  133.  At  the  best,  however,  it  continues  secondary. 
1.  Whart.,  93. 

•  Stebhins  vs.  Duncan,  108  U.  S.,  32,  50  ;  Saxton  vs.  Nimms,  14  Mass.,  320  ;  I.  Green- 
leaf,  §  484. 

» II.  Wharton,  ^§  95-119  :  I.  Greenleaf,  i^  501. 


2 78  MILITARY  LAW. 

form,  by  the  Government  itself  of  the  validity  of  its  own  grant  nnder  its 
own  seal,  and  imports  absolute  verity  as  matter  of  record.  Exemplifications 
are  usually  attested  by  the  certificate  of  the  clerk  of  the  court  from  which 
they  issue,  attested  by  the  signature  of  the  presiding  Judge.  Second,  copies 
may  be  made  by  an  officer  specially  authorized,  by  statute,  to  perform  that 
dutv.  In  such  case  the  statute  authorizing  the  copy  must  be  strictly  followed 
by  the  officer  authorized  to  furnish  the  same.  Co2)ies  so  authenticated  are 
called  certified  or  office  cojnes,  a  term  which  is  also  applied  to  the  transcripts 
of  records  pertaining  to  the  several  executive  departments  of  the  United 
States,  made  by  the  proper  officer  or  custodian,  and  authenticated,  as  a  rule, 
by  the  seal  of  the  department  from  which  the  copy  emanates.  Third,  sivorn 
copies.  These  are  transcripts  of  public  records  made  under  the  sanction  of 
au  oath.  Examined  copies  are  those  which  have  been  compared  with  the 
original,  or  with  an  official  record  thereof.  Such  copies  are  proved  by  some 
one  wlio  has  compared  them  witli  the  originals.'. 

Records  of  Executive  Departments. — ^"  Copies  of  any  books,  records, 
papers,  or  documents  in  any  of  the  executive  departments,  authenticated 
under  the  seals  of  such  departments,  respectively,  shall  be  admitted  in  evi- 
dence equally  with  the  originals  thereof."  " 

»  Wharton,  §  94. 

^  Sectiou  882,  Revised  Statutes.  The  muster-rolls  ou  file  in  the  War  Depurtment  are 
official  records,  and  copies  of  the  same,  duly  certified,  are*  evidence  of  the  facts  originally 
entered  therein  and  not  compiled  from  other  sources,  subje(;t,  of  course,  to  be  rebutted 
b}'  evidence  that  they  are  mistaken  or  incorrect.  So,  though  such  rolls  are  evidence 
that  the  soldier  was  duly  enlisted,  or  mustered  into  the  service,  and  is  therefore  duly 
held  as  a  soldier,  they  may  be  rebutted  in  this  respect  by  proof  of  fraud  or  illegality  in 
the  enlistment  or  muster  (on  the  part  of  the  lepresentative  of  the  United  States  or  other- 
wise), properlv  invalidating  the  proceeding  and  entitling  the  soldier  to  a  discharge. 
(But  that  the  entries  in  such  rolls  are  not  proof  of  the  commission  of  au  offense,  as 
desertion,  for  example,  see  Desertion.)     Dig.  Opin.  J.  A.  Gen.,  395,  pars.  9,  10. 

A  descriptive  list  is  but  secondary  evidence  and  not  admissible  to  prove  the  facts 
recited  therein.  It  is  not  a  record  of  original  entries,  made  by  an  officer  under  a  duty 
imposed  upon  him  by  law  or  the  custom  of  the  service,  but  is  simply  a  compilation  of 
facts  taken  from  other  records.     Ihid.,  401,  par.  '•'>'.]. 

The  "enlistment-paper,"  the  "physical-examination  paper,"  and  the  "outline-card" 
are  original  writings  made  by  officers  in  the  performance  of  dut\'  and  competent  evi- 
dence of  the  facts  recited  therein.  Copies,  authenticated  under  the  seal  of  the  War 
Department,  according  to  Section  883,  Revised  Statutes,  are  equally  admissible  with  the 
originals.     Ibid  ,  401,  par.  31. 

']"he  morning  report  book  is  an  original  writing.  To  properly  admit  extracts  in 
evidence,  the  book  should  be  first  identified  by  the  proper  custodian,  and  tlie  extracts 
then  not  merely  read  to  the  court  by  the  witness,  but  copied,  and  the  copies,  properly 
verified,  attached  as  exhibits  to  the  record  of  the  court.     Jhul.,  par.  32. 

Copies  of  pay  accounts  (charged  to  have  been  du|)licated)  aic  admissible  in  evidence 
where  the  accused  has  by  his  own  act  placed  the  originals  beyond  the  reach  of  process 

♦But  note  in  tliis  connection  Die  riilinj,'  of  tlie  Supreme  Court  of  Massacliusetts  in  the  case  of 
Hanson  vs.  8.  Scituate.  11.5  Mass.,  330,  that  an  official  ('ertificate  from  the  Adjiitant-Generars  Office  to 
the  effect  tliat  certain  facts  appeared  of  record  in  tliat  olifice,  but  whi(.'li  did  not  purport  to  be  a  tran- 
script from  the  recoid  itself  and  was  therefore  simply  a  personal  statement,  was  not  competent  evi- 
dence of  such  facts. 

It  has  been  held  bj-  the  United  States  Supreme  Court  in  a  recent  case,  Evanston  vs.  Gutm,  9  Otto, 
660.  that  the  record  made  by  a  member  of  tlie  United  States  Signal  Corps  of  the  state  of  the  weather 
and  the  direction  and  velocity  of  the  wind  on  a  certain  day  was  competent  evidence  of  the  facts 
reported,  as  being  in  the  nature  of  an  official  record  kept  by  a  public  officer  in  the  discharge  of  a 
public  duty. 


EVIDENCE.  -"9 

Copies  of  any  documents,  records,  books,  or  papers  in  the  office  of  the 
Solicitor  of  the  Treasury,  certified  by  liini  under  the  seal  of  his  office  or, 
when  his  office  is  vacant,  by  the  otiicer  acting  as  solicitor  for  the  time,  shall 
be  evidence  equally  with  the  originals.' 

"  When  suit  is  brought  in  any  case  of  delincjuency  of  a  revenue  officer  or 
other  person  accountable  for  public  money,  a  transcript  from  the  books  and 
proceedings  of  the  Treasury  Department,  certified  by  the  Secretary  or  an 
Assistant  Secretary  of  the  Treasury,  and  authenticated  under  the  seal  of  the 
Department,  or,  when  the  suit  involves  the  accounts  of  the  "War  or  Xavy 
Departments,  certified  by  the  auditors  respectively  charged  with  the  exami- 
nation of  those  accounts,  and  authenticated  under  the  seal  of  the  Treasury 
Department,  shall  be  admitted  as  evidence,  and  the  court  trying  the  cause 
shall  be  authorized  to  grant  judgment  and  award  execution  accordingly. 
And  all  copies  of  bonds,  contracts,  or  other  papers  relating  to  or  connected 
with  the  settlement  of  any  account  between  the  United  States  and  an  indi- 
vidual, when  certified  by  such  auditor  to  be  true  copies  of  the  originals  on 
file,  and  authenticated  under  the  seal  of  the  Department,  may  be  annexed 
to  such  transcripts,  and  shall  have  equal  validity  and  be  entitled  to  the 
same  degree  of  credit  which  would  be  due  to  the  original  papers  if  produced 
and  authenticated  in  court:  provided  that  where  suit  is  brought  upon  a 
bond  or  other  sealed  instrument,  and  the  defendant  pleads  7ion  est 
factum.,  or  makes  his  motion  to  the  court,  verifying  such  plea  or  motion 
by  his  oath,  the  court  may  take  the  same  into  consideration,  and,  if  it 
appears  to  be  necessary  for  the  attainment  of  justice,  may  require  the  pro- 
duction of  the  original  bond,  contract,  or  other  paper  specified  in  such 
affidavit.'" 

"  Upon  the  trial  of  any  indictment  against  any  person  for  embezzling 
public  moneys,  it  shall  be  sufficient  evidence,  for  the  purpose  of  showiiig  a 

and  fails  to  produce  them  in  court  on  proper  notice.  So  where  the  originals  are  in  the 
hands  of  a  person  who  has  left  the  United  States,  so  that  they  cannot  be  reached  on 
notice  to  the  accused  to  produce  them,  or  otherwise.     Dig.  Opin.  J.  A.  Gen.,  401,  par. 

34. 

The  provisions  of  this  .«ection  relate  to  documents  of  record  in  one  of  the  executive 
departmt'iits  in  the  city  of  Washington.  Documents  of  a  ]nihlic  nature  tiled  clsewliere. 
as  at  a  military  post,  or  at  tlie  headciuarters  of  a  militar}'  department,  or  of  an  army  in 
the  held,  are  in  strictness  proved  by  the  production  of  tlie  originals,  or,  in  the  absence  of 
objection,  by  the  production  of  copies  duly  autiicnticated  by  the  proper  custodian.  See 
the  parasiraph,  post,  entitled  Militari/  Orders,  Reports,  Documents,  etc.,  filed  elsewhere 
tJuni  ill  tlie  War  Department. 

'  Section  883.  Revised  Statutes. 

'  Section  88(5,  Revised  Statutes  ;  Walton  v$.  U.  S..  9  Wh.,  651;  U.  S.  rs.  Buford,  3 
Pet.,  12;  Smith  rs.  U.  S.,  5  Pot..  292  ;  Co.\  vs.  U.  S.,  6  Pet..  172;  U.  S.  ts.  Jones,  8 
Pet.,  375;  Gratiot  vs.  U.  S.,  15  Pet.,  336  ;  U.  S.  m.  Irving.  1  Howe.  250;  Hoyt  rs  U.  S..  10 
How.,  109;  Bruce  vs.  U  S.,  17  How.,  437;  U.  S.  vs.  Edwards,  1  McLean.  467:  U.  S. 
vs.  Hilliard  et  al.,  3  McLean,  324;  U.  S.  vs.  Lent,  1  Paine.  417;  U.  S.  ra.  Martin,  2 Paine, 
68-  U  S  vs.  Van  Zandt.  2  Cr.  C.  C.  328:  U.  S.  r.i.  Griffith.  2  Cr.  C.  C,  3:^6;  U.  S.  vs. 
Lee  2  Cr.  C.  C  ,  462;  U.  S.  r.->.  Harrill.  1  Mc.Vll  .  243;  U.  S.  vs.  Mattison.  Gilp..  44:  U.  S. 
vs.  Corwin,  1  Bond.  149:  U  S.  vs.  Gausseu,  19  Wall.,  198;  U.  S.  vs.  Bell,  111  U.  S.. 
477 ;  U.  S;  rs.  Stone,  106  U.  S.,  525. 


2 so  MJUTARY  LAW. 

balance  against  such  person,  to  produce  a  transcript  from  the  books  and 
proceedings  of  the  Treasury  JJepartment,  as  provided  by  the  preceding 
section."  ' 

"  A  copy  of  any  return  of  a  contract  returned  and  filed  in  the  returns 
office  of  the  Department  of  the  Interior,  as  provided  by  law,  when  certified 
by  the  clerk  of  the  said  office  to  be  full  and  complete,  and  when  authenti- 
cated by  the  seal  of  the  Department,  shall  be  evidence  in  any  prosecution 
against  any  officer  for  falsely  and  corruptly  swearing  to  the  affidavit  required 
by  law  to  be  made  by  such  officer  in  making  his  return  of  any  contract,  as 
required  by  law,  to  said  returns-office."  '' 

"  Copies  of  all  official  documents  and  papers  in  the  office  of  any  consul, 
vice-consul,  or  commercial  agent  of  the  United  States,  and  of  all  official 
entries  in  the  books  or  records  of  aiiy  such  office,  certified  under  the  hand 
and  seal  of  such  officer,  shall  be  admitted  in  evidence  in  the  courts  of  the 
United  States."  ' 

State  and  Territorial  Laws ;  Legislative  and  Judicial  Records  of  States 
and  Territories.—"  The  acts  of  the  legislature  of  any  State  or  Territory,  or 
of  any  country  subject  to  the  jurisdiction  of  the  United  States,  shall  be 
authenticated  by  having  the  seals  of  such  State,  Territory,  or  country  affixed 
thereto.  The  records  and  judicial  proceedings  of  the  courts  of  any  State  or 
Territory,  or  of  any  such  country,  shall  be  proved  or  admitted  in  any  other 
court  within  the  United  States,  by  the  attestation  of  the  clerk,  and  the  seal 
of  the  court  annexed,  if  there  be  a  seal,  together  with  a  certificate  of  the 
judge,  chief  justice,  or  presiding  magistrate  that  the  said  attestation  is  in 
due  form.  And  the  said  records  and  judicial  proceedings,  so  authenticated, 
shall  have  such  faith  and  credit  given  to  them  in  every  court  within  the 
United  States  as  they  have  by  law  or  usage  in  the  courts  of  the  State  from 
whicli  they  are  taken."  * 

Journals  of  Congress. — "  Extracts  from  the  journals  of  the  Senate  or  of 
the  House  of  Representatives,  and  of  the  executive  journal  of  the  Senate 
when  the  injunction  of  secrecy  is  removed,  certified  by  the  secretary  of  the 
Senate  or  by  the  clerk  of  the  House  of  Representatives,  shall  be  admitted  as 

'  Section  887,  Rev.  Stats.     U.  S.  vs.  Gaussen,  19  Wall.,  198. 

»  Sectiou  888,  Rev.  Stats. 

3  Section  896,  ibid. 

*  Section  905,  ibid.  Fergiisan  vs.  Harwood.  7  Cr.,  408;  Mills  vs.  Duryea,  7  Or.,  481  ; 
U.  S.  vs.  Ainedv,  11  Wh.,  :^92  ;  Buckner  rs.  Fiuley,  2  Pel.,  r)92;  Ovvings  vs.  Hull,  9  Pet., 
627;  Uitetiqui%;.«.  D'Arbcl,  9  Pet.,  700;  McElniovle  ■jjs.  Cohen,  13  Pet.,  312;  Stacey 
«.  Thrasher,  6  How.,  44;  Bank  of  Alabama  BS.'Dalton,  9  How.,  522;  D'Aicy  vs. 
Ketchum,  11  How  ,  165;  Railroad  vs  Howard,  13  How.,  307;  Booth  vs.  Clark,  17 
How.,  322;  Mason  vs.  Lawrason.  1  Cr.  C.  C,  190;  Bnford  vs.  Hickman,  Hemp,  232; 
Craig  vs.  Brown,  Pet.  C  C,  354:  Stewart  vs  Gray,  Hemp.,  94;  Gardner  t's.  Lindo.  1 
Cr.  C.  C,  78;TriL'-gM.  Conwav,  Hemp,  538;  Turner  vs.  Wnddington,  3  Wash.  C.  C, 
136;  Catlin  vs.  Un'derhill,  4  McL.,  199:  Morgan  vs.  Curtenins,  4  McL.,  366;  Hale  vs. 
Brotberton,  3  Cr.  C.  C,  594;  Mewster  vs.  Spalding.  6  McL.,  24;  Parrot  rs.  Habers- 
ham, 1  Cr.  C.  C.  14;  Talcott  vs.  Delaware  Ins.  Com.,  2  Wash.  C.  C,  449;  James  vs. 
Stookey,  1  Wash.  C.  C,  330;  Bennett  t«.  Bennett,  Dist.  Ct.,  Oregon,  1867. 


EVIDENCE.  281 

evidence  in  the  courts  of  the  United  States,  and  sliall  liave  tlie  same  force 
and  effect  as  the  originals  would  have  if  produced  and  authenticated  in 
court.'"  ' 

Public  Records  of  States  and  Territories. — "  All  records  and  exemplifi- 
cations of  books  whicli  may  be  kept  in  any  public  oftice  of  any  State  or 
Territory,  or  of  any  country  subject  to  the  jurisdiction  of  the  United  States, 
not  appertaining  to  a  court,  shall  be  proved  or  admitted  in  any  court  or  oflice 
in  any  other  State  or  Territory,  or  in  any  such  country,  by  the  attestation 
of  the  keeper  of  the  said  records  or  books,  and  the  seal  of  liis  office  annexed, 
if  there  be  a  seal,  together  with  a  certificate  of  the  presiding  justice  of  the 
court  of  the  county,  parish,  or  district  in  which  such  office  may  be  kept,  or 
of  the  governor,  or  secretary  of  state,  the  chancellor  or  keeper  of  the  great 
seal,  of  the  State  or  Territory,  or  country,  that  the  said  attestation  is  in 
due  form  and  by  the  proper  officers.  If  the  said  certificate  is  given  by  the 
presiding  justice  of  a  court,  it  shall  be  further  authenticated  by  the  clerk  or 
prothonotary  of  the  said  court,  who  shall  certify,  under  his  hand  and  the 
seal  of  his  ottice,  that  the  said  j^residing  justice  is  duly  commissioned  and 
qualified;  or,  if  given  by  such  governor,  secretary,  chancellor,  or  keeper  of 
the  great  seal,  it  shall  be  under  the  great  seal  of  the  State,  Territory,  or 
country  aforesaid  in  which  it  is  made.  And  the  said  records  and  exemplifi- 
cations, so  authenticated,  shall  have  such  faith  and  credit  given  to  them  in 
every  court  and  office  within  the  United  States  as  they  have  by  law  or  usage 
in  the  courts  or  offices  of  the  State,  Territory,  or  country,  as  aforesaid,  from 
which  they  are  taken."  ' 

Judgments  of  Courts. — The  judgments  of  courts  may,  in  a  proper  case, 
be  submitted  in  evidence  during  a  trial  by  court-martial.  As  in  the  case  of 
all  documentary  testimony,  the  best  evidence  of  a  particular  judgment  or 
decision  consists  in  the  production  of  the  record  itself.  This  can  be  done, 
however,  only  in  the  court  to  which  the  record  pertains,  or  in  a  higher  court 
to  which  it  has  passed  in  the  regular  course  of  judicial  proceedings.  In  all 
other  cases,  a  copy  of  the  record,  in  some  form,  replaces  the  judgment  itself 
and  is  given,  usually  by  statute,  the  same  evidential  value.' 

Decisions  of  Courts. — What  are  known  as  the  decisions  of  courts,  a  more 
comprehensive  expression  than  the  term  "  judgments  "  as  used  in  the  tech- 
nical sense  above  described,  and  which  includes,  in  addition  to  the  mere 
judgments  of  the  courts,  in  particular  cases,  the  reasons  assigned  therefor  by 
the  judges  who  rendered  them,  are  to  be  found  in  the  volumes  of  reports 
published  with  the  official  sanction  of  the  courts  that  issued  them.     "  Deci- 

'  Section  895,  Revised  Statutes. 

»  Section  90G,  ihid  ■  U  S.  vs.  Jolins,  4  D.-Ulns,  412  ;  U.  S.  vs.  Amedv.  11  Wheaton, 
392  ;  Watkins  v.t.  Holmaii,  1(5  Pel.,  2o;  Gresrg  p«.  Forsyth,  24  How.,  179:"  Po.sl  vs.  Super- 
visors, 15  Olto.  667;  Siivaire's  Case.  1  Ct.  Cls.,  170;  Leathers  vs.  Salvor  Wrecking  Co  2 
Woods,  680;  McCall  rs.  U.  S.,  1  Dak  ,  320     See,  also,  17  Myers  Fed.  Dec,  132-135. 

'  See,  also,  the  article  eulilled  Copies  of  Public  Documents,  page  277,  supra. 


283  MI  LIT  ART  LAW. 

sions  are  only  evidence  of  what  the  hxws  are,  and  are  not  of  themselves  laws. 
They  are  often  re-examined,  reversed,  and  qualified  by  the  courts  tliem- 
selves,  whenever  found  to  be  defective,  ill  founded,  or  otherwise  incorrect."  ' 

Records  of  Courts-martial. — Copies  of  the  records  of  general  courts- 
martial,  authenticated  under  the  seal  of  the  War  Department,  as  provided 
in  Section  882,  Kevised  Statutes,  are  admissible  in  evidence  "equally  with 
the  originals."*  AVhere  the  purpose  in  introducing  the  record  is  to  prove 
previous  convictions  of  the  same  or  simihir  offenses,  the  order  or  orders 
promulgating  the  proceedings  in  such  cases  may  be  submitted  to  the  court. 
If  the  order  of  publication  does  not,  as  by  not  setting  forth  the  specifica- 
tions, show  the  actual  offense,  the  original  proceedings  (i.e.,  the  original  or 
a  duly  certified  copy)  should  be  pat  in  evidence.' 

The  Act  of  March  3,  1877,*  makes  the  judge-advocates  at  the  several 
department  headquarters  the  custodians  of  the  records  of  the  garrison,  regi- 
mental, and  field-officer's  courts-martial  pertaining  to  the  posts  and 
regiments  stationed  therein.  Those  records  are  required  to  be  retained  in 
such  office  of  record  for  two  years,  at  the  end  of  which  time  tliey  may  be 
destroyed.  Copies  of  such  records,  properly  authenticated  by  the  signature 
of  the  judge-advocate  of  the  department  in  which  they  are  of  official  record, 
are  receivable  in  evidence  by  courts-martial  in  cases  to  which  they  relate. 

General  Orders  of  the  War  Department,  etc. — General  orders  issued  from 
the  War  Department  or  headquarters  of  the  Army  may  ordinarily  be  proved 
by  printed  official  copies  in  the  usual  form.  The  court  will  in  general 
properly  take  judicial  notice  of  the  printed  order  as  genuine  and  correct. 
A  court-martial,  however,  should  not  in  general  accept  in  evidence,  if 
objected  to,  a  printed  or  written  special  order  which  has  not  been  made 
public  to  the  Army  without  some  proof  of  its  genuineness  and  official 
character.'" 

Military  Orders.  Reports.  Documents,  etc.,  Filed  Elsewhere  than  in  the 
War  Department.— Orders,  returns,  reports,  records,  and  other  documents 
pertaining  to  departments,  divisions,  armies,  posts,  and  other  military  com^ 

'  Swift  vs.  Tyson,  16  Pet.,  18;  Anderson's  Law  Diet. 

^  Dig.  J.  A.  Gen.,  400,  par.  30.  Except  by  the  con.seut  of  the  opposite  party,  the  tes- 
timony contained  in  the  record  of  a  previous  trial  of  the  same  or  a  simihir  case  cannot 
properly  be  received  in  evidence  on  a  trial  by  court-martial  ;  nor,  without  such  consent, 
can  the  record  of  a  board  of  investigation  ordered  in  the  same  case  be  so  admitted.  In  all 
cases  (other  than  that  provided  for  by  the  121st  Article  of  War)  testimony  given  upon  a 
previous  hearing,  if  desired  to  be  introduced  in  evidence  upon  a  trial,  must  (unless  it  be 
otherwise  specially  stipulated  between  the  parties)  be  offered  de  novo  and  as  original  mat- 
ter.  Ibid.,  39o,  par.  7. 

^  Ibid.,  610,  par.  3.  A  memorandum  of  the  previous  convictions  is  not  sufficient  : 
they  must  be  shown  either  ])y  the  records  of  the  trials  or  by  duly  authenticated  copies 
of  the  orders  of  promulgation.  It  is  unauthorized  for  the  judge-advocate  to  introduce 
or  the  court  to  admit,  as  evidence  of  previous  convictions  (or  in  connection  with  proper 
evidence  of  the  same),  the  statement  of  service,  etc.,  required  by  par.  927,  A.  R.  1895,  to 
be  furnished  to  the  convening  authority  with  the  charges.   Ibid.  See,  also,  vbid.,  611,  par.  9. 

*  19  Stjit.  at  Large,  810.     See,  also,  Dig.  J.  A.  Gen.,  400,  par.  30. 

'  Dig.  J.  A.  Gen.,  396,  par.  10. 


EVIDENCE.  28 


o 


mands,  not  being  documents  pertaining  to  the  several  executive  departments 
within  tlie  meaning  of  Section  882  of  the  liovised  Statutes,  are  proved  by 
the  production  of  the  originals,  or,  in  the  absence  of  objection,  by  copies 
duly  authenticated  by  tlie  proper  stall  oflicer  of  the  command  to  which  they 
pertain.  When  the  originals  of  such  documents  or  records  are  jiroduced, 
they  are  identified  l)y  the  proper  custodian,  i.e.,  the  }»ost  Ijooks  and  records 
by  the  post  adjutant,  company  books  by  the  company  commander,  hospital 
records  by  the  post  surgeon,  etc. ' 

r  I ;  I  \-  A  r h  ]j(jc  L' ii  ents. 

How  Produced — How  Proved.  —  Private  documcntfi  differ  from  public 
documents  chietly  as  to  the  kiiul  and  amount  of  testimony  necessary  to  es- 
tablish their  identity,  such  burden  of  proof,  in  any  case,  falling  upon  the 
party  in  whose  interest  the  paper  is  produced.  In  general  the  best  evidence 
of  the  contents  of  a  paper  is  that  obtained  by  the  production  of  the  instrn- 
meut  itself.  If  it  be  a  sealed  instrument,  its  execution  must  be  proved  by 
the  testimony  of  at  least  one  subscribing  witness,  unless  tiie  document  is  in 
the  hands  of  the  opposite  party,  or  be  over  thirty  years  old  and  comes  from 
the  proper  custodian,  in  which  case  it  is  said  to  prove  itself,  the  subscrib- 
ing witnesses  being  supposed  to  be  dead.  AVhen  admitted  subject  to  the 
foregoing  conditions,  no  testimony  will  be  received  to  vary  its  terms  in  the 
slightest  degree." 

Notice  to  Produce  ;  Proof  of  Handwriting. — The  production  of  a  paper,  if 
in  the  hands  of  the  opposite  party,  is  obtained  by  a  formal  notice  to  'produce ;  ' 
if  the  paper  be  in  the  possession  of  a  third  part}' — that  is,  in  the  custody  of 
one  not  a  party  in  interest — its  production  is  compelled  by  a  subpoena  duces 
tecum.  When  the  means  above  described  have  been  fully  resorted  to,  or 
upon  satisfactory  proof  that  the  paper  has  been  lost  or  destroyed,  or  that  it 
is  in  possession  of  a  person  not  within  the  jurisdiction  of  the  court,  secondary 

'The  "eiilistinenf-piiper,"  the  "physical-examination  paper,"  and  the  " cuitliue- 
card  "  are  o;'*];/;'/*!/!?  writiiiics  in:i(h!  by  ollicers  in  tlie  perfornuuiee  of  duty  and  couipeteut 
evidence  of  the  facts  recited  therein.  Copies  autlieulicatod  under  the  seal  of  the  War 
Deparlincnt,  according  to  Sec.  88"2,  Hev.  Sts.,  are  equally  admissible  with  the  originals. 
Dig.  J.  A.  Gen.,  401,  par.  31. 

The  Moruiiig-Report  Book  is  an  original  writing.  To  properly  admit  extiacts  in 
evidence,  the  book  should  be  tirst  identified  by  the  proper  custodian,  and  the  extracts 
then  not  merely  read  to  the  court  by  the  witness,  but  copied,  and  the  copies,  properly 
veritied,  attiiched  as  exhibits  to  the  record  of  tl.e  court.     Ihiil  ,  jtar.  '32. 

A  desrriptice  list  is  but  secondary  evidence  and  not  admissible  to  prove  tl.e  facts 
recited  therein.  It  is  not  a  record  of  original  entries,  made  b}'  an  officer  under  a  duty 
imposed  upon  liim  by  law  or  the  custom  of  the  service,  but  is  simply  a  compilation  of 
facts  taken  from  other  records,     /bid.,  par.  H'd. 

Copies  o{  pny  urcoitut^  (charged  to  have  been  duplicated)  are  admissible  in  evidence 
where  tiie  accused  has  l)y  his  own  act  placed  the  originals  l)e\dnd  the  reach  of  jmucl-ss, 
and  fails  to  produce  them  in  court  on  proper  notice.  So  where  the  originals  are  in  the 
hands  of  a  jierson  wlio  has  left  tlie  United  States,  so  that  they  cannot  be  reached  on 
notice  to  the  accused  ti  produce  liiem  or  otherwise.     Ibid.,  par.  34. 

'^  I.  Greenleaf,  §g  27").  276,  and  cases  cited  :  2  Slarkie,  Evid..  r.44-578  ;  Thayer,  Evid.. 
1014-106!)  :  .Martin  rs.  Berens,  67  Pa.  St..  463;  Bernart  rs.  Riddle,  29  id.,  96";  Bast  vs. 
Bank.  101  U.  S   93. 

5  U.  S.  IS.  Winchester,  2  McL.,  135;  Hylton  vs.  Brown,  1  Wash.,  343. 


284  MILITARY  LAW. 

evidence  may  be  submitted  as  to  its  contents.  Such  testimony  may  consist 
in  written,  printed,  photographic,  or  letter-press  copies,  or  in  parol  testimony 
as  to  the  contents  of  the  paper  in  question.  When  written  copies  are  sub- 
mitted, witnesses  are  called  to  prove  handwriting,  and  they  testify:  (1)  from 
having  seen  the  document  written ;  {'i.)  from  having  seen  writings  personally 
admitted  by  the  writer  to  be  genuine;  and  (3)  by  a  comparison  of  writings, 
the  comparison  being  made  between  papers  already  in  evidence  before  the 
court.  In  England  comparison  of  writings  proved  to  the  satisfaction  of 
the  court  to  be  genuine  is  authorized  by  statute,  and  a  similar  rule  exists  in 
several  of  the  States;  in  others,  however,  the  comparison  is  required  to  be 
made  of  writings  already  in  evidence,  the  reason  being  that  the  introduction 
of  writings  not  pertinent  to  the  case  may  give  rise  to  fraud  in  the  matter  of 
the  selection,  or  prejudice  unduly  the  minds  of  the  jury  in  reaching  their 

findinfr.' 

Production  of  Telegrams. — A  court-martial  (by  subpoena  duces  tecum, 
through  the  judge-advocate)  may  summon  a  telegraph-operator  to  appear 
before  it  bringing  with  him  a  certain  telegraphic  dispatch.  But  it  is  beyond 
the  power  of  such  court  to  require  such  witness,  against  his  will,  to  surrender 
the  dispatch,  or  a  copy,  to  be  used  in  evidence.' 

ALTERATIONS    AND    ERASURES. 

Nature  and  Effect. — When  an  alteration  or  erasure  appears  upon  the 
face  of  an  instrument,  and  its  validity  is  drawn  in  question,  the  btirden 
of  explaining  the  change  falls  upon  the  party  who  produces  the  document. 

'  To  the  admission  in  evidence  of  a  letter  written  and  signed  by  the  accused  (of 
■which  the  introduction  is  contested),  proof  of  his  handwriting  is  necessary.  Evidence 
of  handwriting  by  comparison  is  not  admissible  rt^  common  law  except  where  the  standard 
of  comparison  is  an  acknowledged  or  proved  genuine  writing  already  in  evidence  in  the 
case.  A  writing  not  in  evidence  and  simply  oU'ered  to  be  used  as  a  standard  is  not 
admissible.  Dig.  J.  A.  Gen.,  401,  par.  36;  U.  S  m.  McMillan,  29  Fed.  Rep.,  247. 
For  a  full  discussion  of  the  subject  of  comparison  of  handwriting,  see  I.  Greenleaf,  §j^ 
576-581;  1  Wharton,  4;§  711-718.     See,  also,  Wiiithrop,  Ch    XVIII. 

At  tlie  trial,  in  1894,  of  an  officer  cliarged  with  a  disorder  and  breach  of  discipline 
which  involved  the  killing  by  him  of  another  officer,  tlieie  was  offered  in  evidence  on 
the  part  of  the  accused,  to  exhibit  the  character  and  disposition  of  the  officer  killed,  a 
copy  of  a  general  court-martial  order  of  1872,  setting  forth  certain  charges  alleging  dis- 
honest and  unbecoming  conduct,  upon  which  the  latter  officer  was  then  tried  and 
convicted,  and  the  findings  on  the  court  thereon.  IleM,  that  such  evidence  was  wholly 
inadmissible  for  the  purpose  designed.     Dig.  J.  A.  Gen.,  402,  par.  37. 

»  Ibid.,  401,  par.  35.  In  view  of  the  emb  irrassment  which  must  generally  attend  the 
proof,  before  a  court-martial,  of  the  sending  or  receipt  of  telegraphic  messages  by  means 
of  a  resort,  by  suhpana  duces  tecum,  to  the  originals  in  possession  of  the  telegraph  com- 
pany.* advised  that  the  written  or  printed  copy  furnished  by  the  company  and  received 
by  the  person  to  whom  it  is  addressed  should  in  general  be  admitted  in  evidence  by  a 
court-martial  in  the  ab.sence  of  circumstances  casting  a  reasonable  doubt  upon  its  genu- 
iuene.ss  or  correctness.  But  where  it  is  necessary  to  prove  that  a  telegram  which  was 
not  received,  or  the  receipt  of  which  is  denied  and  not  proven,  was  actually  duly  sent, 
the  operator  or  proper  official  of  the  company,  or  other  person  cognizant  of  the  fact  of 
sending,  should  be  summoned  as  a  witness.     Ibid.,  396,  par.  11. 

*  The  subject  of  Uie  extent  of  the  authority  of  the  courts  to  compel  telegraph  companies  to  produce 
ori;;inal  private  teleerrams  for  use  in  evidenceis;  most  fully  treated  in  an  essay  by  Henry  Hitchcock, 
Esq.,  on  the  "Inviolability  of  Telegrams,"  published  in  the  Southern  Law  Review  for  October,  1879. 


EVIDENCE.  285 

Alterations  are  usnally  in  the  nature  of  interlineations  or  erasures.  Jnler- 
lineations  consist  of  words  or  clauses  inserted  between  the  lines  of  an  instru- 
ment; erasures  are  effected  by  striking  out  words  or  clauses,  usually  by 
means  of  a  line  drawn  through  the  matter  to  be  omitted.  As  such  altera- 
tions suggest  fraud,  it  is  incumbent  iipon  the  party  who  would  benefit  by 
the  change  to  explain  its  cause  and  the  time  of  its  execution.  The  effect  of 
a  nuiterial  alteration,  unexplained,  is  to  invalidate  the  instrument.'  Altera- 
tions nuule  at  the  time  of  execution  of  a  legal  instrument  can  be  made  valid 
by  the  insertion  of  a  clause  explaining  them,  immediately  over  the  signatures 
of  the  parties.'  In  a  sealed  instrument  and,  when  no  ground  of  suspicion 
appears,  in  otlier  writings  as  well,  alterations  are  presumed  to  have  been 
made  prior  to  the  complete  execution  of  the  document' 

EXAMINATIOX    OF    WITNESSES.* 

Method  of  Examination— Oaths— Objections  to  Competency. — Before 
testifying,  witnesses  are  sworn  by  the  judge-advocate,  or  by  the  court 
itself  in  military  tribunals  liaving  summary  jurisdiction.  While  the  forms 
of  oath  or  affirmation  prescribed  by  statute  must  be  administered  in  every 
case,  any  extra-statutory  form  may  also  be  used  which  a  witness  may  regard 
as  having  special  binding  force.  Objections  to  the  competency  of  a  witness 
are  properly  made  before  the  administration  of  the  oath,  but  will  be  consid- 
ered at  any  stage  of  the  trial,  provided  the  cause  of  incompetency  was  not 
known  to  exist  at  the  time  the  witness  was  sworn;  if  the  objection  be  sus- 
tained, the  court  will  disregard  any  testimony  that  the  witness  may  have 
given  prior  to  the  discovery  of  his  incompetency. 

Order  of  Examination. — Witnesses  are  first  examined  in  chief  by  the 
party  in  whose  behalf  they  appear,  and  are  then  cross-examined  by  the 
opposite  party.  Considerable  latitude  is  allowed  a  party  in  the  examination 
of  his  witnesses,  so  long  as  the  qiiestions  asked  are  relevant  to  the  issue. 
They  may  then,  if  necessary,  be  re-examined  by  the  party  producing  them. 

Cross-examination. — The  right  to  cross-examine  is  in  general  limited 
to  matters  stated  by  the  witness  in  his  direct  examination.^  As  it  is  the 
purpose  of  the  cross-examination  to  test  the  credibility  of  the  witness,  it  is 
permissible  to  investigate  the  situation  of  the  witness  with  respect  to  the 
parties  and  to  the  subject  of  the  litigation,  his  interest,  his  motives,  inclina- 

'  Monill  vs.  Otis,  12  N.  H..  466;  Ricbmontl  Mfir.  Co.  vs.  Davi.s,  7  Blackford  (Tnd.). 
412;  IJoston  vs.  Benson.  12  Cushin<r  (Mass.  .  »il ;  D.ivis  vs.  C.-irlislo.  6  A!a..  707. 

-  Ravisies  rs.  Alston,  5  Al:i.,  207:  Bootnn  vs.  Bt'iison,  12  C'usli.,  61. 

»  North  River  Meadow  Co.  vs.  Siuewsburv  Clnirch.  22  X.  J  Law  ,2  Zabriskie).  424; 
Matthews  vs.  Coalter.  9  Mo..  70.5;  B.aninn  r.*'.  Russell.  20  Vt..  201. 

^  See.  also,  the  cliapler  entitled  Thk  Incidkxt.s  of  thk  Tki.\i.. 

'  Houghton  vs.  Jones.  1  Wall.,  702  ;  Aumni  rs.  Cohb,  21  Ind..  -492  ;  Cokcly  r«.  State. 
4  Iowa.  477  ;  Helser  vs.  McGrath,  52  Pa.  St.,  531  ;  Campuu  vs.  Dewey,  9  Mich.,  3S1  ; 
Can-  vs.  Gale,  Dav.,  328. 


286  MILITAR  Y  LA  W. 

tions,  and  jirejudices,  his  means  of  obtaining  a  correct  and  certain  knowledge 
of  the  facts  to  which  he  bears  testimony,  the  manner  in  wliicli  he  has  used 
those  means,  his  powers  of  discernment,  memory,  and  description.'  On 
cross-examination,  a  witness  may  be  asked  questions  which  would  not  be 
pertinent  or  relevant  on  his  examination  in  chief.''  While  a  witness  may  be 
cross-examined  as  to  collateral  or  irrelevant  facts  with  a  view  to  test  his 
accuracy  or  veracity,  the  party  must  be  bound  by  the  answers  of  the  witness 
and  cannot  adduce  proof  in  contradiction  of  such  answers;^  nor  is  it  com- 
petent, upon  cross-examination,  to  question  a  witness  upon  matters  irrelevant 
to  the  issue  solely  for  the  purpose  of  discrediting  him/  Degrading  ques- 
tions, also,  are  forbidden  upon  cross-examination  unless  they  relate  to  facts 
in  issue  in  the  record."  If  a  party  wishes  to  examine  a  witness  of  the  ojipo- 
site  side  with  regard  to  new  nmtter  not  introduced  by  the  opposite  party, 
he  must  make  the  witness  his  own  by  introducing  him  at  a  subsequent  stage 
of  the  trial." 

Leading  Questions. — Leading  questions — that  is,  questions  which  sug- 
gest their  answers — are  excluded  if  objected  to  by  the  opposite  party. 
Questions  merely  introductory  in  character,  questions  asked  for  purpose's  of 
identification  or  to  assist  defective  memory,  and  questions  asked  of  a  witness 
who  seems  to  be  hostile  to  the  party  introducing  him  are  exceptions  to  this 
rule.  The  jjurpose  of  cross-examination  is  to  test  the  credibility  of  the  wit- 
ness, and  to  that  end  leading  questions  may  be  put  in  cross-examination, 
together  with  questions  not  otherwise  relevant,  the  purpose  of  which  is  to 
test  his  powers  of  observation,  the  accuracy  of  his  memory,  and  his  correct- 
ness of  statement.' 

'  Winston  vs.  Cox,  38  Ala.,  268  :  Winter  vs.  Burt,  31  Ala.,  33  ;  Chandler  vs.  Allison, 
10  Mich.,  460  ;  Storm  vs.  U.  S.,  4  Otlo,  76. 

*  Winters*.  Burt.  31  Ala.,  33. 

2  Stevens  ««.  Beach,  12  Vt.,  585;  Cornelius  I'S.  Com.,  15  B.  Mon.  (Ky.),  539;  U.  S. 
v».  Dickinson,  2  McLean,  325. 

*  Bivens  vs.  Brown,  37  Ala.,  422  ;  Seavy^s.  Dearborn.  19  N.  H.,  351. 
s  U.  S.  vs.  White,  5  Cr.  C.  C,  73  ;  U.  S.  vs.  Hudland,  5  ibid.,  309. 

«  Phil.  li.  R.  Co.  vs.  Stimpson,  14  Pet.,  448  ;  Brown  vs.  State,  28  Ga.,  199  ;  Patton 
vs.  Hamilton,  12  Ind.,  256.  See,  also,  for  power  of  court  in  control  of  this  subject. 
Storm  Ts.  U.  S.,  4  Otto,  76;  Wills  rs.  Russell,  10  ibid.,  621  ;  Chicago  vs.  Greer,  9 
Wall..  726.     See,  also,  Starkie  on  Evid..  10th  Ed.  pp.  195-224. 

'  U.  S.  vs.  Dickinson,  2  McLean,  325  ;  Bevins  vs.  Pope,  7  Ala.,  371  ;  Green  rs. 
Gould,  3  Allen  (Mass.),  465  ;  Burton  vs.  Kane.  17  Wis.,  37  ;  U.  S.  vs.  An.ffell,  4  Fed. 
Rep.,  34.  In  commencing  the  examination  of  a  witness,  it  is  a  leading  of  the  witness, 
and  objectionable,  to  read  to  him  the  charge  and  specification  or  specifications,  since  he 
i"  thus  instructed  as  to  the  particulars  in  regard  to  which  he  is  to  testify  and  which  he 
is  expected  to  substantiate.*  So  to  read  or  state  to  him  in  substance  the  charge,  ;md 
ask  him  "  what  he  knows  about  it,"  or  in  terms  to  that  effect,  is  loose  and  objectionable 
as  encouraging  irrelevant  and  hearsay  testimony.  The  witness  should  simply  be  asked 
to  state  what  was  said  and  done  on  the  occasion,  etc.  A  witness  should  properly  also 
be  examined  on  specific  interrogatories,  and  not  be  called  upon  to  make  a  general  state- 
ment in  answer  to  a  single  general  question. f    Dig.  J.  A.  Gen.,  394,  par.  5. 

*  Compare  G.  O.  12,  Dept.  of  the  Missouri,  1862;  do.  36,  id.,  1863;  do.  29,  Dept.  of  California,  1665;  ao. 
67,  Dept.  of  the  South,  1874. 

+  See  G.  C.  M.  O.  14,  34,  Dept.  of  Dakota,1877. 


EVIDENCE.  287 


PRIVILEGED    QUESTIONS. 


Nature  of  Privilege. — Witnesses  are  permitted  to  decline  to  answer 
certain  questions,  and  in  a  proper  case  will  be  sustained  by  the  court  in  so 
doing.  Such  questions  are  said  to  he  privileged,  and  are  made  so  as  a  matter 
of  public  policy,  with  a  view  to  prevent  inquisitorial  trials,  or  to  forbid  the 
disclosure  of  facts  the  discovery  of  which  would  affect  injuriously  the  public 
business,  or  trespass  unduly  upon  certain  private  relations  the  continued 
existence  of  whicii  it  is  tlie  policy  of  the  law  to  secure.  The  principal  cases 
of  })rivilege  are: 

1.  K^fate  Secrets. — This  privilege  extends  to  all  departments  of  the 
Government,  and  has  its  origin  in  the  belief  that  the  public  interests  would 
suffer  by  a  disclosure  of  certain  facts  relating  to  the  adnunistration  of  state 
atfuirs.  It  covers  the  statements  of  persons  engaged  in  the  discovery  of 
crime,  the  deliberations  of  courts  and  of  certain  bodies,  like  grand  and  petit 
juries  and  boards  of  arbitration,  the  results  of  whose  deliberations  only  the 
public  has  a  right  to  know.  It  extends  to  the  transactions  of  legislative 
committees  and  to  the  deliberations  of  legislative  bodies  in  closed  session. 
It  includes  diplomatic  correspondence  and  all  communications  between  the 
principal  officers  of  the  several  executive  departments  on  matters  of  public 
business,  together  with  the  pi'oceedings  of  commissions,  courts-martial,  and 
courts  of  inquiry,  and  generally  all  oral  or  written  communications  in 
which  the  production  of  documents  or  oral  disclosures  of  any  kind  is 
restrained  by  law  or  would,  in  the  opinion  of  the  Executive,  be  detrimental 
to  the  public  interests.' 

2.  Attorney  and  Client. — The  disclosures  made  by  a  client  to  his  coun- 
sel or  legal  adviser  are  privileged  during  the  entire  period  within  which 
the  relation  of  attorney  and  client  exists;  and  the  privilege  extends  to  the 
clerks,  agents,  stenographers,  interpreters,  and  other  employees  whose  ser- 
vices are  necessary  to  an  attorney  or  counselor  in  the  transaction  of  his 
business.'  Knowledge  in  relation  to  a  cause  of  action,  or  to  a  criminal 
offense,  obtained  by  an  attorney  as  the  result  of  his  observations  as  a  private 


'  Grecnleuf,  §  251  ;  Wharton,  §  578  ;  2  Robertson's  Burr's  Trial,  501  ;  U.  S.  vs.  Six 
Lots  of  Ground'.  1  Woods.  234.  Official  comnuinications  between  the  heads  of  tlie 
departmenis  of  the  Government  and  their  subordinate  otticers  are  privileired.  Were  it 
otlierwise  it  would  be  impossible  for  such  superiors  to  administer  effectually  the  public 
affairs  with  which  thevare  entrusted.     Dig.  J.  A.  Gen.,  398.  par.  18. 

An  accused  party  at  a  military  trial  can  rarely  be  entitled  to  demand  the  attendance, 
as  a  witness,  of  a  chief  of  a  staff  corps,  much  less  that  of  the  President  or  Secretary  of 
War.  especially  as  some  minor  official  can  almost  invariably  furnish  the  desired  facts. 
Tf,  however,  the  testimony  of  one  of  these  otlicials  be  found  to  be  necessary  or  most 
desirable,  and  the  same  cannot  legally  be  taken  by  deposition,  the  court,  if  convened 
at  a  distance,  may  properly  be  adjourned  to  Washington  or  other  convenient  point,  in 
order  that  the  witness  may  be  enabled  to  attend  without  detriment  to  the  public  interests. 
Ibid..  752.  par.  11. 

•  People  n.  Atkinson,  40  Cal.,  284  ;  Alderman  vs.  People,  4  Mich.,  414  ;  People  vs. 
Blakely,  4  Parker,  176. 


288  MILITARY   LAW. 

iudividual,  and  not  due,  in  an}'  degree,  to  his  professional  relation  to  his 
client,  may  be  testified  to  in  any  case  and  at  any  time.  The  same  is  true  of 
information  gained  before  his  employment  as  counsel  began  or  after  it  has 
ceased  to  exist.  At  common  law  tliis  privilege  extends  to  attorneys  and 
counsel  only,  as  above  explained,  and  any  confidential  communications  made 
to  physicians,  clergymen,  or  others  may  be  testified  to  unless  specially  privi- 
leged bv  statute.* 

o.  Hushaml  and  ^Vife. — The  disability  of  the  parties  to  a  marriage  con- 
tract, due  to  their  identity  of  interest,  has  already  been  discussed.  In 
addition  to  this,  the  law  forbids  either  husband  or  wife  to  testify  as  to  any 
confidential  communications  made  during  the  continuance  of  the  marriage 
relation,  as  opposed  to  public  policy." 

4.  Criminating  Questions — By  Whom  Deternmied. — At  the  common 
law  a  witness  was  privileged  to  decline  answering  a  question  when  the  effect 
of  such  answer  was  to  criminate  him  or  expose  him  to  a  penalty  or  forfeiture. 
The  priyilege  is  that  of  the  witness,  not  of  the  party  in  whose  behalf  he 
appears.'  The  term  "criminate"  is  here  used  in  a  technical  sense,  and 
means  thai;  the  effect  of  a  particular  answer  will  be  to  expose  the  witness  to 
a  criminal  prosecution  or  to  a  penal  action."  Xor  can  the  witness  be  com- 
pelled to  produce  documents  which  would  tend  to  incriminate  him,'  or  be 
required  to  make  what  is  called  *'  profert  of  the  person,"  that  is,  to  expose 
any  part  of  his  body  usually  covered  by  his  clothing,  as  to  remove  a  shoe  and 
fit  his  foot  into  an  impression  in  clay,  or  to  disclose  a  scar  or  the  like  for  the 
purpose  of  identification.'  The  question  as  to  whether  a  particular  question 
shall  be  answered  is  one  for  the  court  to  determine,  in  vieAV  of  all  the  cir- 
cumstances of  the  case;  and  if,  upon  such  examination  and  consideration, 
it  appears,  that  the  answer  will  tend  to  criminate  the  witness — that  is,  if 
the  answer,  taken  in  connection  with  other  facts,  Avill  be  calculated  to  form 
a  link  in  the  chain  of  criminating  circumstances — the  court  will  instruct  the 
witness  to  refuse  to  answer.'     A  similar  rule  prevails  in  equity  procedure. 


'  People  vs.  Stout,  3  Parkor,  670  ;  People  vs.  Gates.  13  Wendell,  311. 
»  Hopkins  M.  Grimsiiaw.  165  U.  S.,   342;  Graves  vs.   U.  S.,  150  U.  S.,  118:  U.   S. 
TS.  .Tones,  32  Fed.  Rep..  569. 

'  Com.  cs.  Slia'.v,  4  dishing,  594. 

*  If  a  witne.ss  consents  to  lestif}\  so  as  to  criminate  iiimsclf  as  well  as  the  defendant, 
he  iiiusl  answer  all  questions  legallv  p\it  to  him  concerning  that  matter.  Com.  vs.  Price, 
10  Gray,  472  ;  People  vs.  Carroll,  3  Parker,  73;  Com.  rs.  Lannau,  13  Allen,  563  ;  Com. 
rs.  Mullen,  97  Mass.,  545  :  Com.  rs.  Bonner,  ibid.,  .587. 

*  Byass  vs.  Sullivan,  21  IIow.  (N.  Y.),  Pi.,  50. 

«  DIackwell  rs.  State,  3  Crim.  Law.  Mag.,  393;  Doyns  vs.  State,  63  Ga.,  699; 
Stokes  vs.  Slate,  ^  Ba.xter  (Tenn.,)  619.      But  see  State  vs.  Ah  Chung.   14  Nev. 

'  Whether  the  answer  may  tend  to  criminate  the  witness  is  a  point  which  the  court 
will  deterp'.ine  under  all  the  circumstances  of  the  case,  and  without  requiring  the  witness 
to  explain  how  he  may  he  criminated  hy  the  answer.  State  rs.  Staples,  47  N.  H.,  11  ; 
f'ommonweallh  vs.  Brainerd.  Thach.  Crim.  Cases.  146:  Ward  vs.  State,  2  Mo..  98; 
People  vs.  Mather,  4  Wend..  231  ;  Richmond  rs.  Slate,  2  Greene.  532.  See,  also.  State 
vs.  Duffy,  15  Iowa,  425  ;  Floyd  vs.  State,  7  Fed.,  215.     But  see  U.  S.  vs.  Burr,  1  Burr's 


EVIDENCE.  289 

5.    Questions  TendirKj  to  Disijruce  Witness. — A  witness  is  privileged  to 
decline  to  answer  a  question  which  tends  to  disgrace  liim,  unless  the  answer 

Trial.  245;  U.  S.  vs.  Miller,  2  Crunch  C.  C,  247;  Wanier  vs.  Lucns,  10  Ohio,  306; 
Poole  i)s.  Perriit,  1  Spears  (!S.  C),  128. 

It  is  not  i^ufUcieul  I(j  excust;  ilie  witness  from  testifying  tliat  he  may,  iu  his  own 
mind,  tliinU  his  answer  to  the  (luestion  might,  hy  possibility,  lead  to  a  eriminal  charge 
against  him,  or  tend  to  convict  him  of  it  if  made.  The  court  must  be  able  to  perceive 
that  tliere  is  reasonable  ground  to  apprehend  danger  to  the  witness  from  his  being  com- 
pelled to  answer.      U.  S.  vw.  McCarty,  18  F.  H. ,  8"?. 

The  privilege,  recogni/.ed  by  the  coniinon  law,  of  a  witness  to  refuse  to  resj)ond  to 
a  question  the  answer  to  which  uuiy  criminaie  him  is  a  personal  one,  which  the  witness 
may  exercise  or  waive  as  he  may  see  lit.  It  is  not  for  the  judge-advocate  or  accused  to 
object  to  the  question  or  to  check  tlie  witness,  or  for  the  court  to  exclude  the  question 
or  dirt'cl  the  witness  not  to  answer.  Wliero,  however,  he  is  ignorant  of  his  right,  the 
court  may  properly  advise  him  of  the  .same.  But  where  a  witness  declines  to  answer  a 
(piestion  on  the  ground  that  it  is  of  such  a  character  that  the  answer  theretc;  may  crim- 
inate him,  but  the  court  decides  thai  the  (jueslion  is  not  one  of  this  nature  and  that  it 
must  be  answered,  the  witness  cannot  properly  further  refuse  to  respond,  and  if  he 
does  so  will  render  himself  liable  to  charges  and  trial  under  Article  62.  Dig.  Opin. 
J.  A.  Gen.,  I'A,  par.  17. 

Where  a  witness  lias  voluntarily  answered  as  to  material  criminating  facts,  it  is  held 
with  uniformity  that  he  cannot  then  stop  short  and  refuse  further  explanation,  but 
must  disclose  full}'  wliat  he  has  attempted  to  relate.  This  view  is  adopted  by  the  text- 
writers,  and  is  very  well  explained  in  several  of  the  authorities,  where  the  principle  is 
laid  down  and  enforced.  1  Starkie  Evid.  (lOth  Am.  ed.)214;  lioscoe's  Crim.  Ev.,  174; 
1  Greenl..  sec.  4r)l  ;  2  Phil.  Ev.,  935  ;  2  Ku.ss.  (Jr.,  931  ;  Coburn  vs.  Odell,  10  Fo.ster, 
540;  State  r.s.  K.,  4  N.  11.,  5G2  ;  State  w.  Foster,  3  Foster,  348  ;  Foster  th.  Pierce,  11 
Cush.,  437  :  Brown  rs.  Brown,  5  Mass.,  320  ;  Amherst  vs.  Hollis,  9  N.  II.,  107  ;  Low  r«. 
Mitchell,  18  Me.,  372;  Chamberlain  vs.  Willson,  12  Vt.,  491  ;  People  vs.  Lohmann,  2 
Barb.  S.  C,  216  ;  Norfolk  vs.  Gaylord,  28  Conn..  3.09. 

Upon  a  trial  of  a  cadet  of  the  Military  Academy,  the  court  (against  the  objection  of 
the  accuseil)  reciuired  another  cadet,  introduced  as  a  witness  for  the  iiroscciition.  to 
testify  as  to  facts  which  would  tend  to  crimiiuife  him.  Held  that  such  action  was 
erroneous,  the  not  answering  in  such  cases  being  a  privilege  of  the  witness  only,  who 
(whether  or  not  objection  were  made)  could  refuse  to  testify,  and  who,  if  ignorant  of  his 
rights,  should  be  instructed  therein  l>y  the  court.       Dig.  Opin.  J.  A.  Gen.,  400,  par.  27. 

At  the  trial  of  a  cadet  of  the  Military  Academy,  the  accused,  while  on  tlie  stand  as  a 
witness,  was  advised  by  the  couit  that  while  it  was  his  privilege  to  refuse  to  answer  any 
question  tliat  might  tend  to  criminaie  him.  j'et  the  court  wouhl  "  put  its  own  interpreta- 
titin  "  on  the  fact  of  his  refusing.  Held  a  grave  error,  which  might  well  induce  the 
disapproval  of  the  finding  and  sentence  adjudged.     Ibid.,  par.  28. 

Section  860,  Revised  Statutes.— In  the  case  of  Tinker  vs.  United  States  (151  U.  S., 
164,  168i,  the  Supreme  Couri  of  the  United  States  has  placed  an  interpretation  upon 
certain  clauses  of  Section  8(50,  Revised  Statutes.  That  section  contains  the  re(juirement 
that  ■' no  pleading  of  a  party,  nor  any  discovery  or  evidence  obtained  from  a  party  or 
witness  by  means  of  a  judicial  proceeding  in  this  or  any  foreign  country,  shall  be  given 
in  evidence,  or  in  any  manner  used  against  him  or  his  property  or  estate,  in  any  court  of 
the  United  States,  in  any  criminal  proceeding,  or  for  the  enforcement  of  any  penalty  or 
forfeiture  :  proriihd  that  this  .section  shall  not  exemin  any  party  or  witness  from 
jM'osecution  and  punislnnent  for  perjury  committed  in  discovering  or  testifying  as  afore- 
said." In  its  decision  the  court  held  that  "pleadings  of  parties"  are  the  allegations 
maile  by  the  parties  to  a  civil  or  criminal  case  for  the  purpose  of  detinilely  presenting 
the  issue  to  l)e  tried  and  delermined  between  them.  "  Discovery  or  evideiice  obl.dned 
from  a  witness  by  means  of  a  judicial  proceeding"  includes  oid}" facts  or  papers  which 
the  j>arly  or  witness  is  compelled  bv  subpo'na,  interrogatory,  or  other  judicial  process 
to  disclose,  whether  he  will  or  iu\  and  is  inapiilic,'d)le  to  testimony  voluntarily  given  or  to- 
documents  voluntarily  ju-oduced.  The  clause  as  to  di.scovery  or  evitlence  is  ct)nceived 
in  the  same  spirit  as  tiie  Fifth  Amendment  of  the  Constitution,  declaring  that  "  no  person 
shall  he  compelled  in  any  criminal  case  to  be  a  witness  against  himself";  and  [as]  the  Act 
of  March  16,  187S,  (20  Stat,  at  Large,  30.)  enacted  that  a  defendant  in  any  crimini.l  case 
may  be  a  witness  at  his  own  reciuest,  but  not  otherwise,  and  that  his  failure  to  make 
such  request  shall  not  create  any  presumption  acainst  him.  Tucker  rs.  U.  S.,  151 
U.  S.,  164,  168 ;  Boyd  vs.  U.  S.,  116  U.  S.,  616  ;  Wilson  «s.  U.  S.,  149  U.  S.,  60  ;  Lees  ts. 


290  MILITARY  LAW. 

would  bear  directly  npon  the  issue; '  and  the  court  may,  in  its  discretion, 
allow  or  disallow  a  question  which  tends,  not  to  criminate,  but  only  to 
degrade  or  disgrace  the  witness." 

CREDIBILITY    OF    WITNESSES. 

Credibility  in  General. — The  credibility  of  a  witness  is  his  worthiness  of 
belief.  In  a  civil  trial  it  has  been  seen  that  the  credibility  of  witnesses  is 
determined  by  the  jury;  in  the  procedure  of  courts-martial  such  questions, 
like  those  relating  to  competency,  are  determined  by  the  court.  The  pre-  ■ 
sumption  as  to  credibility,  like  that  respecting  comjietency,  is  always  in  favor 
of  the  credibility  of  the  witness;  in  other  words,  the  law  presumes,  and  the 
court  is  bound  to  act  on  the  presumption,  that  a  witness  testifying  under 
oath  speaks  the  truth; '  but  this  presumption  is  not  conclusive  and  may  be 
overcome,  wholly  or  in  part,  by  the  witness  himself:  first,  by  his  demeanor 
on  the  stand,  or  l)y  his  behavior  under  cross-examination;  second,  by  testi- 
mony directed  against  his  credibility  by  the  opposite  party. 

In  determining  the  weight  to  be  attached  to  the  testimony  of  a  particular 
witness,  regard  must  be  had  to  his  capacity,  whether  he  was  able  to  see  and 
understand  the  transaction,  whether  he  Avas  attentive  or  careless,  prejudiced 
or  impartial,  or  whether  he  has  some  sinister  motive  that  might  lead  him  to 
fabricate  that  which  he  did  not  see.*  Where  one  witness  testifies  positively 
and  another  negatively,  both  being  credible,  greater  weight  is  to  be  given  to 
the  former;  so,  too,  the  testimony  of  one  witness  who  testifies  positively  to  a 
fact  is  entitled  to  more  consideration  than  that  of  several  whose  statements 
are  merely  negative.'* 

In  determining  the  credibility  of  testimony,  the  manner  of  the  witness 
in  respect  to  coherency  or  consistency,  his  memory,  whether  accurate  or 


13.  S.,  150  U.  S.,  476.  No  statute  which  (like  Section  860,  R.  S.)  leaves  the  party  or 
witness  subject  to  prosecution,  after  he  answers  the  criminating  question  put  to  him, 
can  have  the  effect  of  snppliinting  the  privilege  conferred  by  the  Constitution.  Counsel- 
man  vs.  Hitchcock,  142  U.  S.,  547. 

The  immediate  object  of  the  legislation  of  February  25,  1868,  from  which  section 
860,  R.  S..  is  taken,  was  to  protect  against  certain  forfeitures  agents  of  the  Confederate 
States  whose  testimony  in  regard  to  assets  of  the  Confederacy  it  was  desired  to  obtain 
abroad.     Congressional  Globe,  40th  Cong.,  2d  sess.,  part  2,  p.  1334. 

'  Lohman  W  People,  1  Comst.,  379;  Ilowell  vs.  Com.,  5  Gratt.,  664.  See,  also, 
People  vs.  Rector,  19  Wend.,  569  ;  Clementine  vs.  State,  14  Mo.,  112  ;  Barnes  vs.  State, 
19  Conn.,  398.     See,  also,  note  5,  page  286,  ante. 

2  State  r.s.  Blansky,  3  Minn.,  246.  To  excuse  the  witness  from  answering,  it  is  not 
sufficient  that  his  answer  will  have  a  tendency  to  expose  him  lo  infamy  or  disgrace  ;  the 
question  must  be  such  that  the  answer  to  it  which  he  may  be  required  to  make,  by  the 
obligation  of  his  oath,  will  directly  show  his  infamy.  People  vs.  Mather,  4  Wend., 
239. 

^Comstock  vs.  Ray  ford,  20  Miss.,  309. 

"People  vs.  Bodine.  1  Edm.  (N.  Y.)  Sel.  Cas  ,  36. 

»Pool  vs.  Devers,  30  Ala.,  672;  Harris  vs.  Bell,  27  Ala.,  520;  Auld  vs.  Walton,  12  La. 
Ann.,  129:  Todd  vs.  Hardie,  5  Ala.,  698;  Johnson  vs.  State,  14  Ga.,  55;  Coles  vs.  Perry, 
7  Tex.,  109. 


EVIDENCE.  291 

defective,  and  liis  powers  of  observation  should  be  carefully  considered;  fco, 
too,  his  position  with  regard  to  the  parties,  his  relationship  to  the  accused, 
his  hostility  to,  or  friendship  for,  the  accused  or  for  the  prosecutor, 
and  his  interest  in  a  conviction  or  acquittal  are  all  matters  which  may 
seriously  affect  the  amount  of  weight  to  be  attached  to  particular  testimony. 
Where  certain  grounds  of  incompetency  have  been  removed  by  statute,  as 
where  an  accused  person  has  been  jjermitted  to  testify  in  his  own  behalf,  it 
is  usually  provided  that  the  cause  of  incompetency  so  removed  may  be 
estaljlished  in  evidence  with  a  view  to  afEect  the  credibility  of  a  particular 
witness;  and  when  such  cause  of  incompetency  has  been  established,  either 
by  the  admissions  of  the  witness  or  by  the  evidence  of  others,  the  weight  to 
be  attached  to  the  testimony  of  such  a  witness  is  very  materially  diminished. 

Conflicting  Testimony. — If  witnesses  contradict  each  other,  the  court 
must  determine  the  degree  of  credibility  to  be  attached  to  their  testimony. 
In  case  of  conflict,  the  greater  weight  should  be  given  to  the  testimony  of 
those  witnesses  whose  position  gave  them  the  best  opportunity  for  observa- 
tion.' If  such  conflict  arises  in  the  testimony  of  witnesses  who  are  alike 
unimpeached  and  have  equal  opportunities  for  obtaining  information,  the 
testimony  of  the  greater  number  must  prevail ; '  so,  too,  Avhere  there  is  an 
irreconcilable  conflict  in  the  testimony  of  witnesses,  and  circumstances  of 
suspicion  attach  to  their  credit,  on  both  sides,  the  balance  of  evidence  will 
be  regarded  as  in  favor  of  the  party  having  the  greater  number.' 

Impeaching  Credit. — The  credibility  of  a  witness  may  be  attacked,  as 
has  been  seen,  in  cross-examination,  or  his  testimony  may  be  rebutted  by 
the  testimony  of  other  witnesses.  In  addition,  in  a  proper  case,  his  reputa- 
tion for  truth  and  veracity  may  be  impeached.* 

Reputation  and  Character. — It  has  been  seen  that  the  terms  "reputa- 
tion "  and  "  character"  are  not  synonymous.  The  character  of  a  person, 
using  that  term  in  the  sense  of  disposition,  is  known  to  no  one  but  himself; 
the  outward  manifestations  of  character,  however,  as  evinced  by  the  life  he 
lives  and  the  reputation  he  enjoys  in  the  community  at  large,  are  facts,  and 
as  sucli  are  susceptible  of  being  established  by  the  testimony  of  witnesses. 
One  element  of  reputation  pertaining  to  every  person  in  a  particular  com- 
munity is  that  of  veracity  in  their  communications  with  others.  It  is  to  tliis 
reputation  for  veracity  that  testimony  impeaching  credibility  is  usually 
addressed."    When  the  reputation  of  a  witness  in  this  regard  has  been  estab- 

>Biinett  rs.  Williamson,  4  McLean,  589;  Hitt  m.  Rush,  22  Ala.,  563;  Durham  ts. 
Ilolemaii.  :5()  Ga.,  619. 

'  Vaughan  vs.  Parr,  20  Ark..  000;  Dowdell  vs.  Neal,  10  Ga.,  148. 

»  The  Napoleon,  Olcott   Adm.,  208. 

4  Com.  vs.  Lincoln,  110  Mass..  410:  Brown  vs.  State,  24  Ark.,  620,  State  rs.  Hamil- 
ton, 32  Iowa.  572;  State  vs.  Fove,  5P>  .Mo.,  3:](5;  Stephens  vs.  People,  19  N.  Y.,  549; 
Hamilton  ra.  People,  29  Mich.,  13:5:  State  vs.  Howard,  9  N.  H.,  485;  Com.  rs.  Billings. 
97  Mass  ,  405;  Keator  vs.  People,  32  Mich..  484;  People  r*'.  Tyler.  35  Cal.,  563. 

'Brown  vs.  U.  S.,  164  U.  S.,  221;  Edgingtou  vs.  U.  S.,  ibid.,  361. 


292  MILITARY  LAW. 

lished  in  evidence  it  is  permitted  iu  some  jurisdictions  to  ask  the  witness 
whether  lie  would  believe  such  a  person  on  his  oath.  This  calls  for  an 
expression  of  opinion,  not  of  fact,  and  the  rules  as  to  its  admissibility  are 
not  uniform.  In  England  and  in  some  of  the  States  of  the  Fnion  the 
inquiry  is  permitted;  in  others  such  conclusions  of  fact  are  left  to  the  jury 
for  determination  in  attaching  weight  to  the  testimony  of  a  witness  whose 
reputation  for  truth  and  veracity  has  been  shown  to  be  bad. 

Inconsistent  Statements. — Witnesses  may  be  shown,  by  their  own  testi- 
mony or  that  of  others,  to  have  made  statements  out  of  court  not  consistent 
with,  and  in  some  cases  opposed  to,  those  made  in  their  sworn  testimony. 
Such  statements  must  have  been  relevant  to  the  case,  however,  and  fully 
identified  by  the  admissions  of  the  witness  or  the  testimony  of  others. 

REFRESHING    MEMORY. 

When  Permissible. — X  witness  while  undergoing  examination  may 
refresh  his  memory  from  notes  made  by  himself  or  another  at  the  time  of 
the  transaction  to  which  he  testifies,  if  he  can  identify  them  as  contem- 
poraneous and  can  swear  that  they  were  made  or  read  by  him  at  the  time 
when  the  events  occurred.'  Such  notes  may  be  examined  by  the  opponent's 
counsel  and  may  be  made  the  subject  of  cross-examination.'' 

ADMISSION    OF    FACTS    WITHOUT    PROOF. 

Admissions. — The  existence  of  a  fact  may  to  a  limited  extent,  and  with 
the  permission  of  the  court,  be  admitted  by  either  party,  or  by  an  agreement 
or  stipulation  between  both  parties;  and  when  so  admitted  in  evidence,  no 
testimony  in  proof  or  disproof  of  such  fact  will  be  received. 

NUMBER    OF    WITNESSES. 

When  Important. — As  all  matters  affecting  the  credibility  of  witnesses 
are  decided  by  the  court,  the  question  of  attaching  weight  to  particular  testi- 
monv,  which  is  an  incident  or  consequence  of  their  credibility,  rests  with  and 
is  determined  bv  the  court.'     When  the  testimony  is  conflicting  this  task 


1  Under  this  head  would  fall  official  papers  made  and  signed  by  ihe  witness  at  the 
date  of  the  transaction  as  to  which  he  isiriviiis;  testimony. 

*  Hill  vs.  State,  17  Wis..  OTf);  State  vs.  Bacon,  41  Vt..  526;  Com.  vs.  Fox,  7  Gray, 
585;  State  vs.  Taylor,  3  Oieg.,  10;  State  vs.  Colwell,  3  K.  I.,  132. 

Where  a  witness  for  the  prosecution  was  pcrniittod  by  a  court-martial  to  temporarily 
suspend  his  testimony  and  leave  the  court-room  for  the  purpose  of  refreshing  his  mem- 
ory as  to  certain  dates,  held  that  such  action  was  irregular  and  the  further  testimony  of 
the  witness  as  to  such  dates  inadmissible.  By  the  cfjurse  pursued  the  court  and  accused 
■were  prevented  from  knowing  by  what  means  the  memory  of  the  witness  had  been 
refreshed— wliether,  for  instance,  it  may  not  liave  been  refreshed  by  oral  statements  of 
some  person  or  persons.     Dig.  .J.  A.  Gen.,  399.  par.  19. 

*  The  weight  of  evidence  does  not  depend  upon  the  numljer  of  the  witnesses.  A  sin- 
gle witness,  whose  statements,   manner,  and  api)earance  on   the  stand   are  such  as  to 


EVIDENCE.  293 

is  frequently  attended  with  difficulty,  and  is  sometimes  impossible  of  attain- 
ment, resulting  in  disagreement.'  It  may  be  laid  down  as  a  general  rule, 
however,  that  the  testimony  of  a  single  competent  and  credible  witness  is 
sufficient  to  establish  a  fact  in  evidence  unless  the  Constitution,  a  statutory 
provision,  or  a  rule  of  the  common  law  requires  otherwise.  The  Constitu- 
tion of  the  United  States  provides  that  in  case  of  treason  the  testimony  of 
two  witnesses  to  the  same  overt  act,  or  a  confession  in  open  court,  shall  be 
necessary  to  a  conviction,  and  it  has  been  held  that  a  confession  out  of  court 
must  also  be  substantiated  by  the  testimony  of  two  witnesses.  In  cases  of 
perjury,  also,  the  testimony  of  two  witnesses  is  necessary  to  convict,  as 
otherwise  the  oath  of  one  man  would  be  balanced  against  that  of  another. 
This  rule  has  beeii  relaxed  in  some  jurisdictions,  however,  and  the  testimony 
of  a  single  credible  witness,  supported  by  corroborating  circumstances,  is 
there  held  to  be  sufficient  to  establish  guilt  beyond  a  reasonable  doubt.* 

Cumulative  Evidence.— Cumulative  evidence  is  further  or  additional 
proof  as  to  a  point  or  fact  which  has  already  been  established  by  the  testi- 
mony of  copipetent  and  credible  witnesses.  If  it  only  serves  to  strengthen 
a  fact  already  established,  and  not  to  support  or  introduce  a  new  one,  it  is 
cumulative."  When,  therefore,  a  fact  has  been  conclusively  established  in 
evidence  and  there  is  no  conflict  of  testimony  in  regard  to  its  existence,  it  is 
obviously  unnecessary  to  consume  the  time  of  the  court  by  introducing  new 
or  additional  testimony  in  its  support,  and  such  testimony  if  objected  to 
will  in  general  be  rejected. 

"Written  Testimony,  When  Necessary. — In  some  cases  written  testimony 
is  required  to  establish  particular  facts,  and  cannot  be  replaced  by  oral  testi- 
mony. In  such  a  case  the  testimony  is  introduced  in  accordance  with  the 
rules  regulating  the  admission  of  documentary  evidence. 

commeiul  bim  to  credit  !ind  confidence,  will  sometimes  properly  outweigh  several  les3 
accept;ible  and  satisfactory  witnesses.*  But  a  court-martial  cannot  properly  exclude 
from  consideration  the  testimony  of  a  witness  because  it  is  diffuse  and  inconclusive 
(peculiarities  which  may  result  from  embarrassment  or  infelicity  of  expression),  provided 
it  be  pertinent  to  the  issue.     Dig.  .1.  A.  Gen.,  394,  par.  3. 

'  It  is  an  important  part  of  the  judgment  of  the  court,  in  a  case  where  the  evidence  is 
conflicting,  to  determine  the  measure  of  tlie  credibility  to  be  attached  to  the  several  wit- 
nesses. In  its  finding,  therefore,  the  court  may,  in  connection  with  the  testimony, 
properly  take  into  consideration  the  appearance  and  deportment  of  the  witnesses  on  the 
stand  and  ilieir  manner  of  testifying,  especially  when  under  cross-e.xamination.  Ibid., 
412.  par.  14. 

-  U.  S.  vs.  Coons,  1  Bond,  1;  State  vs.  Ravmond,  20  Iowa,  502;  Com.  vs.  Farley. 
1  Thach.  Crim.  Cases.  6.')4;  Stater*.  Hayward.'l  Nott  &  McCord,  .546. 

*  Aiken  vs.  Bemis,  3  Woodbury  &  Ma.son,  348.     Starkie.  lOlh  Am.  Ed.  826. 


*  Although  the  testimony  of  a  single  witness,  whose  credit  is  imtointed,  is  sufficient  t"  warrant  a 
conviction,  even  in  a  criminal  case,  vet  imdouhtedly  any  additional  and  concurrent  testimony  adds 
greatly  to  the  credil)ility  of  testimony,  in  all  cases  wiiere  it  labors  under  doubt  or  suspii-ion:  f.n-  then 
an  opportunitv  is  afforded  of  coniparint:  the  testimony  of  the  witnesses  on  minut.-  am!  collateral  points, 
on  which,  if  they  were  witnesses  of  truth,  their  testinionv  would  agree  t>ut  if  Xh^■y  were  false  wit- 
nesses, would  be  likely  to  differ.     .Starkie  (10th  Am.  Ed  t,  8-.'8. 


294  MILITARY  LAW. 

DEPOSITIONS. 

Depositions  in  Evidence.— In  its  provisions  respecting  civil  and  criminal 
trials  the  law  assumes  tliat  evidence  will  be  obtained,  as  a  general  rule, 
from  the  testimony  of  witnesses,  given  under  the  sanction  of  an  oath  in  open 
court.     This  is  especially  true  of  criminal  cases,  in  which  the  accused  is 
guaranteed  the  right  of  being  confronted  with  the  witnesses  against  him  and 
of  exercising  the  privilege  of  cross-examination.'     It  is  also  essential  to  a 
just  determination  of  the  case  that  the  court  should  have  the  privilege  of 
hearing  testimony  from  the  lips  of  the  witnesses,  in  order  that  it  may  judge 
of  their  credibility  and  attach  proper  weight  to  their  evidence.     In  some 
instances,  however,  this  is  impossible,  and  the  testimony  of  such  material 
witnesses  as  are  sick,  or  absent,  or  who  reside  out  of  the  jurisdiction  of  the 
court,  and  Avho  are  thus  not  subject  to  its  process,  must,  if  taken  at  all,  be 
procured  in  writing,  under  such  conditions  as  are  calculated  to  secure  the 
best  evidence  attainable  under  all  the  circumstances  of  the  case.     This  is 
accomplished  by  written  instruments  called  depositions,  which  the  law  places 
at  the  disposal  of  litigant  parties  for  this  purpose.     A  deposition  may  there- 
fore be  defined  as  a  written  declaration  under  oath,  made  upon  notice  to  the 
adverse  party  for  the  purpose  of  enabling  him  to  attend  and  cross-examine, 
or  to  make  use  of  written  interrogatories  for  that  purpose. 

Distinguished  from  Affidavits.— From  the  definition  above  given,  it  will 
be  seen  that  depositions,  properly  so  called,  are  sharply  distinguished  from 
what  are  known  to  the  law  as  affidavits,  which  are  simply  voluntary  oaths 
attesting  the  correctness  of  certain  facts  contained  in  the  written  instrument 
to  which  an  affidavit  is  attached.  Affidavits  are  generally,  if  not  always, 
ex  parte  in  character  and,  in  the  procedure  of  courts-martial,  serve  to  show 
"  reasonable  cause"  upon  w^hich  a  court-martial  may  base  its  action  upon  a 
request  for  a  continuance,  under  the  93d  Article,  or  to  verify  service  iti  the 
case  of  a  subpoena,  and  establish  the  fact  that  the  writ  was  personally  served. 
Depositions,  on  the  other  hand,  are  instruments  of  evidence  and,  when  pre- 
pared in  strict  accordance  w'ith  the  requirements  of  statutes,  constitute 
means  by  which  the  guilt  or  innocence  of  an  accused  person  may  be  deter- 
mined. Affidavits  are  recognized,  l)y  statute  and  regulation,  in  what  is 
knoAvn  as  7yiilitary  adyninistration,  in  determining  questions  of  money  or 
property  accountability,  but,  save  for  the  purposes  above  set  forth,  are  not 
admissible  in  the  practice  of  courts-martial.' 

'  See  Constitution,  Article  VI  of  Amendments  and  Dig.  J.  A.  Gen.  752,  nar.  10. 

'  The  instnimeiits  referred  to  as  "  depositions  "  in  Sections  224.  225,  and  1304,  Revised 
Statutes,  and  parMLniiplis  682  and  683,  Army  Regulations  of  1895,  are  in  fact  affidavits, 
and  not  depositions  in  tlie  proper  sense  of  tlie  term.  Tlie  so-called  depo.sitions  ("affi- 
davits or  depositions")  lefened  to  above  are  entirely  distinct  from  the  depositions  pro- 
vided for  in  Art.  91,  being  merely  sworn  ex  parte  statements  used  for  the  purpose  of 
settling  questions  of  "  property  accountability."      The  regulation  has  no  application 


EVIDEXCE.  295 

Depositions  in  Court-martial  Procedure. — The  use  of  depositions  in  the 
practice  of  courts-niartiul  is  roguhited  by  the  'J  1st  Article  of  Wur,  which 
contains  the  refjuirenient  that  "  the  depositions  of  witnesses  residing  beyond 
the  limits  of  the  8tate,  Territory,  or  District  in  which  any  military  court 
may  be  ordered  to  sit,  if  taken  on  reasonable  notice  to  the  opposite  party 
and  duly  authenticated,  may  be  read  in  evidence  before  such  court  in  cases 
not  capital." 

'i'he  authority  conferred  by  the  01st  Article  is  coupled  with  several 
important  statutory  restrictions.  Dejiositions  cannot  be  received  in  capital 
cases,  and  in  other  cases  only  when  the  witness  resides  without  the  State, 
Territory,  or  District  in  which  the  court  may  be  ordered  to  sit.'  As  the 
compulsory  process  authorized  by  Section  1202,  Revised  Statutes,  does  not 
run  beyond  the  territorial  limits  therein  set  forth,'  tlie  authority  conferred 
by  the  91st  Article  must  be  construed  in  connection  therewith,  and,  as  a 
consequence,  the  testimony  of  witnesses  residing  beyond  such  territorial 
limits  will  ordinarily  be  taken  by  deposition;  but  this  cannot  be  done  when 
it  is  necessary  that  the  witnesses  should  be  confronted  with  the  accused. 
In  such  cases  their  testimony  can  only  be  taken  on  their  voluntary  appear- 
ance in  court.  The  testimony  of  military  witnesses  stationed  or  residing 
beoynd  the  State,  Territory,  or  District  in  which  the  court  sits  will,  also, 
ordinarily  be  taken  by  deposition.' 

The  Article,  in  specifying  that  the  deposition,  to  be  admissible  in  evi- 
dence, shall  be  "  duly  authenticated,"  makes  it  essential  that  the  same  shall 
be  sworn  to  before,  i.e.,  taken  under  an  oath  administered  by,  an  official 
competent  to  administer  oaths  for  such  purpose.     As  will  presently  be  seen, 

■whatever  to  depositions  proper  of  the  class  authorized  by  this  Article.  Dig  J.  A  Geo., 
1U6.  p;ir.  10. 

Tiie  provisions  of  Sees.  866-870,  Rev.  Sts.,  rehUe  to  depositions  in  the  U.  S.  courts, 
and  hiive  no  appliciition  to  courts-martial,  which  are  no  part  of  the  U.  S.  judiciary. 
Held.  Ilierefore,  that  there  was  no  authority  whatever  for  prescribiug,  as  was  done  in 
G.  O.  2.  Dopt.  of  Texas,  1888,  that  the  laws  of  Texas  in  regard  to  the  taking  of  deposi- 
tions should  govern  depositions  in  military  courts  held  within  that  State.  Ibid.,  107, 
par.  19. 

'  A  deposition  cannot  be  read  in  evidence  in  a  capital  case — as  in  a  case  of  a  vio- 
lation of  Art.  21,  or  a  case  of  a  spy,  or  one  of  desertion  in  time  of  war  :  otherwise  in  a 
case  of  desertion  in  time  of  peace.  Nor  is  the  deposition  admissible  of  a  witness  who 
resides  in  the  State,  etc.,  within  which  the  court  is  held,  except  by  con.sent.  Dig.  J.  A. 
Gen.,  104.  par.  1. 

■  See  the  article  entitled  llieWrit  of  AUnchment,  supra. 

'  Manual  for  Courts-martial,  3~),  par.  1. 

Where  the  evidence  of  higli  officers  or  public  officials — as  a  department  commander 
or  chief  of  a  bureau  of  the  War  Department — is  required  before  a  co\irt-martial,  the 
same,  especially  if  the  court  is  assembled  at  a  distant  point,  should  be  taken  by  depo- 
sition, if  authorized  under  this  Article.  Such  officers  should  not  be  recjuired  to  leave 
their  public  duties  to  attend  as  witnesses,  except  where  their  dejiositions  will  not  be 
admissible,  and  where  the  rase  is  one  of  special  importance  and  their  testimony  is 
essential.  The  Secretary  of  War  should  not  be  required  to  attend  as  a  witness,  or  to 
give  his  deposition,  in  a  military  ca.se  where  the  chief  of  a  staff  corps  or  other  officer 
in  whose  bureau  the  evidence  sought  is  matter  of  record,  or  who  is  personally 
acquainted  with  the  facts  desired  to  be  proved,  can  attend  or  depose  in  his  stead.  Dig. 
J.  A.  Gen.,  104.  par  2. 


296  MILITARY  LAW. 

a  deposition  should  now  be  sworn  to  before  one  of  the  military  officers  speci- 
fied in  the  Act  of  Jul}-  37,  1892,'  or,  if  such  an  officer  be  not  accessible,  by 
a  civil  official  competent  to  administer  oaths  in  general." 

Procedure. — In  a  proper  case  the  questions,  or  interrogatories,  as  they 
are  called,  are  drawn  up  by  the  party  who  desires  the  testimony  of  the  wit- 
ness to  be  taken.  Cross-interrogatories  are  framed  by  the  opposite  party, 
and  both  lists  are  submitted  to  the  court  by  whom  such  questions  are  added 
as,  in  its  judgment,  are  necessary  to  elucidate  the  whole  of  the  witness's 
testimony.  The  interrogatories  and  cross-interrogatories  are  prepared  under 
tlie  direction  of  the  court,  which  decides  all  points  that  arise  as  to  the 
relevancy  or  materiality  of  the  questions  submitted. 

Tlie  interrogatories  having  been  accepted  by  the  court,  the  judge-advo- 
cate prepares  duplicate  subpoenas  requiring  the  witness  to  appear  in  person 
ut  a  time  and  place  to  be  fixed  by  the  officer,  military  or  civil,  who  is  to  take 
the  deposition.' 

The  judge-advocate  will  then  send  the  interrogatories  and  subpoenas  to 
the  convening  authority,  with  a  request  that  the  deposition  be  secured.* 
This  to  secure  authority  for  the  necessary  expenditure  involved  in  the 
undertaking,  and  to  obtain  the  detail  of  a  military  officer  or  the  designation 
of  a  civil  officer  to  take  the  de2)Osition. 

Judge-advocates  of  departments  and  of  courts-martial,  and  the  trial 
officers  of  summary  courts,  are  authorized  to  administer  oaths  and  take 
depositions.*  If  none  of  these  officers  are  available  for  this  purpose,  an  army 
officer  may  be  designated  to  see  that  the  deposition  is  properly  taken ;  but  the 
oath  in  such  a  case  must  be  administered  and  the  deposition  authenticated  by 
a  civil  officer  empowered  by  law  to  administer  oaths  for  general  purposes." 

The  officer  so  designated  will,  before  serving  the  subpoena,  complete  it 
if  necessary  by  inserting  the  name  and  official  designation  of  the  notary  (or 
other  official  having  authority  to  administer  the  oaths)  before  whom  it  is  to 
be  taken,  and  the  date  on  which,  and  the  place  where,  it  is  proposed  to 
take  it.  When  the  deposition  has  been  duly  taken,  he  will  certify  to  this 
fact  and  transmit  it  to  the  president  of  the  court.' 

!  Section  4,  Act  of  July  27,  1892  (27  Slat,  at  Large,  278);  G.  O.  57,  A.  G.  O.,  1892.  A 
court-martial  lias  of  course  no  power  to  (lualify  or  authorize  a  commanding  ofBcer,  or  any 
other  officer  or  person,  to  take  a  deposition  or  administer  an  oath.  Dig.  J.  A.  Gen.,  106, 
par.  11. 

"^  Dig.  J.  A.  Gen.,  105,  par.  9.  An  official  empowered  to  administer  oaths  only  for  a 
certain  special  purpose  or  purposes  cannot  legally  qualify  a  witness  whose  deposition  is 
sought  to  be  taken  under  this  Article.  A  deposition,  introduced  by  either  piuty,  which 
is  not  "  duly  authenticated  "  should  not  be  admitted  in  evidence  by  the  court,  although  the 
other  party  may  not  object.  A  deposition  held  irregular  and  inadmissible  wliere  it 
failed  to  show  that  the  officer  by  whom  it  was  taken  was  authorized  to  take  it,  or  that  he 
■was  qu.alified  to  administer  the  oath  to  the  witness.     Ibid.,  105,  par.  8. 

'  If  the  name  of  this  officer  is  not  known,  the  space  for  it  will  be  left  blank.  Manual 
for  Courts-martial,  36.  par.  2. 

*  Section  4,  Act  of  July  27,  1892,  (27  Stat,  at  Large,  270);  Dig.  J.  A.  Gen.,  106,  par. 
15;  Manual,  etc.,  36,  par.  3. 

■■  Manual,  etc..  36,  par.  3. 

« Ibid.  36,  par.  3,  note. 


EVIDENCE.  297 

Ou  reasonable  notice  to  the  opposite  party,  depositions  may  also  be  taken 
before  the  assembling  of  the  court-martial,  by  means  of  interrogatories  and 
cross-interrogatories,  subject  to  exceptions  when  read  in  court.' 

In  capital  cases,  however  {i.e.,  those  in  which  the  offense  is  punishable 
by  death),  or  in  cases  where  the  judge-advocate  can  certify  "  that  the 
interests  of  justice  demand  that  the  witness  shall  testify  in  the  presence  of 
the  court,"  the  witnesses  will  be  formally  summoned  by  the  judge-advocate 
in  accordance  with  the  method  already  described.* 

Evidential  Value. — The  statutory  conditions  set  forth  in  tlie  Article 
having  been  fully  complied  with  in  any  case  within  its  terms,  entitles 
either  party  to  have  depositions  so  taken  read  in  evidence.'  Objections  to 
the  competency  of  a  deponent  should  be  raised  \mor  to  the  reading  of  his 
deposition,  and  in  accordance  with  the  rules,  already  explained,  for  deter- 
mining the  competency  of  witnesses.  Should  the  deponent  be  found  to  be 
incompetent  for  any  cause,  his  deposition  is  rejected.  The  credibility  of 
the  deponent  is  determined,  as  in  the  case  of  other  witnesses,  by  the  court 
itself. 

The  party  at  whose  instance  a  deposition  has  been  taken  cannot  be 
admitted,  against  the  objection  of  the  opposite  party,  to  introduce  only  such 
parts  of  the  deposition  as  are  favorable  to  him,  or  such  parts  as  he  may  elect 
to  use;  he  must  otfer  the  deposition  in  evidence  as  a  whole  or  not  offer  it  at 
all.*  If  the  party  at  whose  instance  a  deposition  has  been  taken  decides  not 
to  put  it  in,  it  may  be  read  in  evidence  by  the  other  party.  One  party 
cannot  withhold  a  deposition  against  the  consent  of  the  other.' 


'  Manual  for  Courts  martial,  86,  par.  3.  , 

Upon  the  receipt  of  the  deposition,  the  judge-advocate  will  also  prepare  and  sign  the 
ordinary  "accounts  for  a  civilian  witness,"  substitutin<;  for  tlie  usual  statement  in  regard 
to  attendance  before  the  court  a  statement  that  he  duly  attended  as  a  witness  at  a 
cc-rtaiu  time  and  place  and  duly  gave  his  deposition  before  a  certain  official  named, 
and  then  transmit  them  to  the  witness  witli  duplicate  copies  of  the  order  convening  the 
court.  The  period  of  attendance  can  be  ascertained  from  the  deposition.  Ibid.,  36.  par. 
5      See,  also.  Dig.  J.  A.  Gen.,  106,  par.  16. 

'  Ibid.,  37,  par.  6.  Regular  subiKPnas  will  be  made  out  by  the  ju<lge-advocate, 
certilied  to  as  ai)ove,  if  necessary,  and  transmitted  to  the  department  commander,  with 
a  recpiest  that  they  be  didy  forwaided  to  the  witness,  if  an  officer,  or  to  the  nearest 
post  commander  for  service,  if  the  witness  is  an  enlisted  man  or  a  civilian. 

'  Dig.  J.  A.  Gen.,  105,  par.  7.  A  deposition  duly  taken,  under  the  Article,  on  the 
part  of  the  prosecution,  is  not  subject  to  objection  by  the  accused,  and  cannot  be 
rejected  by  the  court  merely  upon  the  ground  that  it  is  declared  in  the  Vltli  Amend- 
ment to  the  Constitution  thai  "in  all  crinnnal  prosecutions  tiie  accused,  shall  enjoy 
the  right  ...  to  be  confronted  with  the  witnesses  ag.ainst  him."  4'his  <'onslitniini)al 
provision  has  no  application  to  courts-martial  :  the  "  criminal  prosecutions  "  referred 
to  are  prosecutions  in  tlie  U.  S  .  civil  courts.     Ibid.,  107,  par.  18. 

*  Dig.  J.  A.  Gen  ,  104,  par.  3. 

''Ibid.,  105,  par.  4.  Where  a  deposition,  introduced  by  ihe  prosecution,  though 
lesral.  was  incomplete,  but  the  defect  was  waived  by  the  accused,  held  that  the  prosecu- 
tion was  estopped  from  afterwards  questioning  it  as  competent  evidence.  Ibid..  106, 
par.  14. 

Where  the  judge-advocate  ofTered  in  evidence  on  tlie  part  of  the  prosecution  a 
deposition  which  proved  to  have  been  given  by  a  person  other  than  the  one  to  whom 


298  MILITARY  LAW. 

The  depositions  of  civilian  witnesses,  while  their  taking  generally 
involves  less  expense  than  would  the  personal  attendance  of  the  parties,  are 
usually  quite  sufficient  as  testimony,  except  when  the  purpose  of  the  evi- 
dence is  to  personally  identify  the  accused  before  the  court.' 

Depositions  in  Foreign  Countries. — The  operation  of  the  91st  Article, 
not  being  restricted  by  its  terms  to  the  territory  of  the  United  States,  "  the 
deposition  of  a  witness  residing  in  a  foreign  country,  taken  before  a  qualified 
person — an  American  consul,  for  example, — would  be  admissible  in  evidence 
under  this  Article  equally  with  the  deposition  of  a  resident  of  the  United 
States.'" 

PRESUMPTIONS. 

Nature  and  Character. — What  are  known  as  presumptions  play  an 
important  part  in  the  law  of  evidence,  the  nature  of  which  will  now  be 
explained.  Presumptions  are  either  legal  assumptions,  or  logical  inferences 
from  the  existence  of  certain  facts,  as  to  the  existence  or  non-existence  of 
facts  in  issue.  If  logical  inferences,  they  are  presumptions  of  fact ;  if  legal 
assumptions,  they  ax&  presumptions  of  laio.^ 

Presumptions  of  Fact. — Presumptions  of  fact  are  mere  logical  inferences, 
or  conclusions,  as  to  the  existence  of  a  particular  fact,  drawn  from  the  exist- 
ence or  non-existence  of  other  facts.  The  facts  upon  which  such  a  pre- 
sumption are  based,  in  a  particular  case,  must  be  derived  from  the  evidence 
submitted;  and  to  justify  a  court-martial  in  reaching  a  conclusion  in 
respect  to  the  guilt  of  an  accused  person,  the  facts  from  which  it  is  inferred 
must  not  only  be  consistent  with  the  theory  of  guilt,  but  mnst  be  irrecon- 
cilable with  any  reasonable  theory  as  to  his  innocence. 

Presumptions  of  Law. — Presumptions  of  law  are  assumptions  of  the 
truth  of  certain  facts  without  proof  of  their  existence,  made  with  a  view  to 
facilitate  the  administration  of  justice,  and  to  dispense  with  the  introduction 
of  testimony  in  their  support,  or  to  make  it  for  the  time  being  unnecessary. 
A  presumption  of  law,  therefore,  assumes  a  certain  fact  or  set  of  facts  to 
exist  as  a  probable  consequence  of  the  existence  of  other  facts,  either  abso- 
lutely, as  will  presently  be  explained,  or  until  the  contrary  has  been  proved 
to  exist.     The  assumption  that  public  officers  perform  their  duties  in  good 


the  interrogatories  were  addressed,  and  flie  accused  objected  to  its  introduction,  but  the 
objection  was  overruled  by  tlie  court,  held  error  ;  the  fact  that  the  intended  deponent 
WHS  but  the  affent,  in  the  transaction  imiuired  about,  of  tlie  person  who  actuall}' 
furnished  the  deposition  not  beinsr  sunicictii  to  make  such  deposition  admissible  except 
by  consent  of  parlies.     Dig.  J.  A.  Gen..  10.")   \v.\v.  fi. 

'  Dig.  J.  A.  Gen.,  106,  par  13.  A  depo.^ition  is  not  in  general  satisfactory  evidence 
for  purposes  of  personal  identification  by  description,  and  should  not  be  resorted  to  for 
the  identification  of  an  accused  where  reuable  oral  testimony  can  be  obtained.  Ibid., 
par.  12. 

«  Ihifl.,  10.5,  par.  .5. 

»  Am.  and  Eng.  Encyc.  of  Law,  article  Presumptions. 


EVIDENCE.  '  299 

faith,  tluit   infants  are  incapable  of  making  contracts,  and  the  like,  are 
examples  of  such  presumptions. 

Presumptions  of  law  are  again  classified  into  conclusive  or  absolute  pre- 
sumptions and  disputable  {)resumptions. '  iV  conclusive,  absolute,  or  indis- 
putahb'  presumption  is  one  which  assumes  a  fact  or  condition  of  fact  to  exist, 
and  forbids  all  proof  to  the  contrary.  Such  are  the  i)resumptions  that  a 
crime  committed  by  the  wife  in  the  presence  of  the  husband  is  committed 
by  his  direction  or  coercion,  that  a  child  under  seven  cannot  commit  crime, 
or  that  a  boy  under  fourteen  or  a  girl  under  twelve  is  incapable  of  matri- 
monial consent. 

A  disputable  presumptio7i  consists  in  the  assumption  of  the  truth  of  a 
fact  until  the  contrary  is  proven.  Such  are  the  presumptions  that  an 
accused  person  is  innocent  until  proven  guilty,  that  an  assault  with  a  deadly 
weapon  presumes  an  intent  to  kill,  or  that  persons  are  sane,  living,  or  com- 
petent to  testify  until  the  opposite  has  been  established  in  evidence.  To  this 
class  belong  most  of  the  presumptions  which  are  recognized  in  the  practice 
of  courts-martial. 

Effects. — Presumptions  of  law  are  arbitrary  in  their  nature  and  assume 
certain  rules  of  conduct  to  have  been  observed  in  the  past.  Some  of  them 
take  the  form  of  legal  enactments — as  in  the  case  of  statutes  of  limitation — 
others  are  customary  or  are  derived  from  the  common  law.  Presumptions 
of  fact  become  operative  only  when  the  facts  upon  which  they  are  based 
have  been  conclusively  established  in  evidence  and  the  inferences  from  them 
are  so  strong  as  to  remove  all  doubt  and  uncertainty  from  the  minds  of  those 
whose  duty  it  is  to  draw  them. 

Presumptions  of  law  are,  as  a  rule,  continuous  and  favor  an  existing  status, 
and  the  burden  of  showing  the  opposite  to  be  true  rests  upon  him  who  asserts 
it.  Hence  a  person  is  presumed  to  be  living  until  seven  years  have  elapsed 
since  he  was  last  heard  from ;  he  is  then  presumed  to  be  dead  until  the  con- 
trary has  been  shown.  A  person  having  a  legal  residence  or  domicile  is  pre- 
sumed to  continue  in  such  residence,  and  a  similar  rule  applies  to  sanity,  com- 
petency, and  marriage.  Presumptions  also  favor  order,  regularity,  and  good 
faith.  The  power  of  persons  to  contract,  the  legitimacy  of  children,  the 
proper  and  regular  execution  of  instruments,  the  validity  of  public  acts,  the 
constitutionality  of  laws,  the  correct  performance  of  administrative  duties, 
and  the  like,  are  examples  of  this  class  of  presumptions.  So,  also,  the  pos- 
session of  real  or  personal  property  presumes  ownership,  the  acceptance  of 
services  presumes  an  agreement  to  pay  for  them,  the  mailing  of  letters, 
where  a  delivery  exists,  atfords  a  presumption  of  delivery,  while  the  fact  of 
registration  affords  a  very  strong  {)resumption  of  such  delivery. 


'  II.  Whartou  Evidence,  i^.^  1226-1365  ;    Wharton  Criui.  Law,  §  707;  I.  Greenleaf 
§§  14-48  ;  Stephens  Dig.  Evid.  Art.  1  ;  1  Best,  §§  303-334. 


CHAPTER  XVI. 

MARTIAL   LAW, 
MILITARY    GOVERNMENT.       MILITARY    COMMISSIONS. 

Martial  Law  or,  to  speak  more  correctly,  Martial  Rule,  is  a  term  applied 
to  the  temporary  government,  by  military  authority,  of  a  place  or  district  in 
which,  by  reason  of  the  existence  of  a  state  of  war  and  the  pendency  of 
military  operations,  the  ciril  government  is,  for  the  time  being,  unable  to 
exercise  its  functions.'  Such  inability  maybe  due  to  the  occupation  of  a 
portion  of  the  territory  of  a  State  by  the  enemy,  or  to  the  existence  of  an 
insurrection  or  rebellion  of  such  magnitude  as  to  suspend,  for  the  time,  the 
operation  and  execution  of  the  laws.  Martial  law  may  be  regarded  from 
several  points  of  view : 

1.  In  its  Application  to  the  Occupied  Territory  of  an  Enemy  in  War. — 
In  this  case  it  is  more  appropriately  called  tJie  law  of  hostile  occupation^  and 
its  exercise  is  authorized  by  the  usage  of  nations,  being  regulated  by  what 
are  known  as  the  Laws  of  War,  a  branch  or  subdivision  of  Public  Inter- 
national Law. 

When  Applicable. — It  applies  to  territory  over  which  the  Constitution 
and  laws  of  the  United  States  have  no  operation,  and  in  which  the 
guaranties  which  are  contained  in  that  instrument  are  entirely  inefPective. 
Its  exercise  is  sanctioned  because  the  local  authority  is  unable  to  maintain 
order  and  protect  life  and  property  in  the  immediate  theatre  of  military 
operations  and,  to  some  extent,  because  the  invading  belligerent  may,  as  a 
war  measure,  suspend,  wholly  or  in  part,  the  municipal  law  of  the  enemy  in 
such  territory.* 

'  The  terms  Martial  Law  and  Military  Law  are  by  no  means  synonymous.  Military 
law  "  is  the  code  of  rules  for  the  government  of  the  Army  and  Navy  ;  it  is  a  depart- 
ment of  the  municipal  law  applicable  to  a  small  portion  of  the  people  engaged  in  a 
special  service  ;  it  is  enacted  by  Congress  and  executed  by  the  President  ;  civilians  are, 
by  the  very  terms  of  the  Constitution,  exempted  from  its  operation."*  Martial  law,  in 
its  extreme  form,  is  described  by  a  recent  writer  as  "  the  suspension  of  all  law 
but  the  will  of  the  military  commanders  entrusted  with  its  execution,  to  be  exercised 
according  to  their  judL'ment,  tlie  exigencies  of  the  moment,  and  the  usages  of  the  service, 
with  no  fixed  and  settled  rules  or  laws,  no  definite  practice,  and  not  bound  even  by  the 
rules  of  the  milit.ury  law."* 

^Dig.  J.  A.  Gen.,  471,  par.  IL  The  law  of  hostile  occupation  (military  govern- 
ment) "  is  military  power  exercised  by  a  belligerent,  by  virtue  of  his  occupation  of  an 

*  Finlason  on  Martial  Law,  107. 

300 


MARTIAL  LAW.  301 

Mere  hostile  occuputiou,  huwover,  docs  not  operate  ipao  fatUo  to  suspend 
the  laws  in  force  in  the  occupied  territory.  It  is  a  principle  of  tlie  law  of 
wur  that  the  municipal  laws  of  a  conquered  country  continue  in  force  during 
the  military  occupation  by  tlie  conqueror,  except  in  so  far  as  the  same  may 
necessarily  be  suspended,  or  their  operation  be  affected  by  his  acts.'  Such 
conqueror  or  belligerent  occupant  "  may  suspend  or  supersede  them,  for  the 
time  being,  but,  in  the  absence  of  orders  to  that  effect,   they  remain  in 

force.'" 

"  Supreme  military  authority  in  a  city  "  or  other  place  "  is  not  incom- 
patible  with  the  existence  and  authority  of  courts  of  civil  jurisdiction  and 
procedure."  '  But  where  the  courts  of  a  hostile  country  are  left  open  by 
the  conqueror,  it  is  only  the  citizens  of  such  country  that  are  subject  to 
their  jurisdiction:  the  officers  and  soldiers  of  the  occupying  army  are  in  no 
manner  amenable  to  the  same.' 

2.  Application  to  Territory  of  the  United  States  in  Insurrection  or 
Eebelliou. — When  an  insurrection  has  attained  such  strength  and  volume 
that  the  public  armed  forces  are  called  upon  to  suppress  it,  and  a  state  of 
public  war  exists,  which  is  recognized  as  such  by  the  several  departments  of 
the  Government,  participants  in  such  insurrection  or  rebellion  become,  for 
the  time,  public  enemies,  and  the  territory  constituting  the  theatre  of  opera- 
tions becomes  the  territory  of  the  enemy.  Such  was  the  case  in  respect  to 
several  States  of  the  Union  during  the  War  of  the  Rebellion.  The  military 
operations  undertaken  with  a  view  to  its  suppression  were  carried  on  in 
accordance  with  the  usages  of  war.  Citizens  of  or  residents  in  such  territory 
were  regarded  by  the  courts  of  the  United  States  as  alien  enemies,  and  "  all 


eiieiny's  territory,  over  such  territory  and  its  inhabitants.*     Tiii-;  belongs  to  the  Law  of 
War,  and  i'neicfore  to  the  Law  of  Nations."     :\Ian.  for  ("ourts-niartial.  o. 

I  "  By  the  welirecoirnized  ininciples  of  international  law,  the  mere  military  occupa- 
tion of  a  country  t)y  a  belligerent  power  or  a  conqueror  does  not  ij)so  facto  tlisplace  the 
municipal  laws.  Such  conqueror  or  belligerent  occupier  may  suspend  or  supersede  them 
for  the  lime  being,  but,  in  the  absence  of  orders  to  that  effect,  lh(;y  remain  in  force." 
Winglifld  cs.  Crosby,  o  Cold..  24G.  So  where  a  testator  had  executed,  in  Vicksburg, 
Mississippi,  after  its  capture  and  during  its  occupation  by  our  forces,  a  will  devising 
real  estate,  but  sucii  will,  in  not  being  attested  by  the  required  nun.ber  of  witnesses, 
was  invalid  under  the  Stale  law,  held  that,  as  this  law  was  in  no  respect  moilitied  upon 
the  capture,  the  devisee  under  the  will,  however  loyal,  could  not  priiperly  be  invested 
by  military  authority  with  the  legal  title  to  such  estate  against  the  heirs  at  law.  Dig. 
J.  A.  (Jen.,  471.  par.  11. 

»  Winglield  vs.  Crosby,  o  Cold.,  246. 

'Pepin  vs.  Lichenmeyer,  4.')  N.  Y.,  27.  And  see  Kimball  vs.  Taylor,  2  Woods,  37; 
Rutledge  vs.  Fogg,  3  Cold.,  oM;  Hefferiuan  vs.  Porter,  6  id.,  391;  Murrell  vs.  Jones, 
40  Miss.,  56(5;  Dow  r,*.  .Tohnson,  post. 

*This  principle  has  recently  been  illustrated  by  the  Supreme  Court  in  the  cases  of 
Coleman  vs.  Teiuiessee,  7  Otto",  509;  Dow  rs.  Johnson,  10  Otto,  158,  106. 

•  Military  povernment  "  is  the  authority  by  which  a  commander  gorernsa  conquered  district  when" 
the  local  inititiitions  have  been  overflirown  and  the  local  rulers  displaced,"  as  a  consequence  of  mili- 
tary operations,  "and  before  Conjrrcss  has  had  an  opportunity  to  act  imder  its  power  to  dispose  of 
captures  or  to  Rovern  territories.  The  auiliority.  in  fact,  tielonfrs  to  the  President;  and  it  assumes  the 
war  to  tie  still  ratcintr.  and  the  final  status  of  the  coniiuiTcd  territory  to  be  nndetertnined.  so  that  the 
apparent  exercise  of  civil  functions  is  really  a  measure  of  host«ility.""  Ponieroy,  Constitutional  Law, 
3d  ed.,  4T7. 


o0-2  MILITARY  LAW. 

trade  and  intercourse  with  the  enemy,  except  so  far  as  permitted  by  the 
President  under  authority  from  Congress,  or  in  rare  cases  by  a  commanding 
general  in  the  field  representing  the  President,  was  necessarily  suspended."  ' 


'  Dig.  J.  A.  Gen.  468.  l)ar.  1.  Sec  Prize  Cases.  2  Black,  666-9;  Dow  vs.  Jobusou,  10 
Olto,  164;  Brown  ):s.  Ilialt,  1  Dillon,  -^72;  Phillips  vs.  Hatch,  id.,  571;  Sanderson  vs. 
iloiiian.  oi)  N.  Y.,  -'Ill;  Perkins  vs.  lioger.s,  3-")  Ind.,  r.;4;  Leallieis  r*.  Com.  Ins.  Co.,  2 
Basil,  639  ;  Hedges  vs.  Price,  2  West  Ya.,  19-J  ;  The  Ouachiia  Cotton,  6  Wallace,  5'21  ; 
Cappell  vs.  Hill,  7  id.,  542.  554;  McKee  m.  United  ISlnte.s,  ^id.,  163;  United  States  «s. 
Grossmaver,  9  id.,  72;  Montgomery  vs.  United  States,  15  id.,  395;  Hamilton  vs.  Dillin, 
21  id..  73;  Mitchell  vs.  Uniteil  Stales,  iil.,  350;  Matthews  t's.  McStea,  1  Otto,  7;  Dow  vs. 
John.sou,  10  id..  164;  Kei»haw  vs.  KeL-^ey,  100  Mass.,  561;  Lieber's  Instructions,  G.  O. 
100,  War  Dept.,  163,  par.  86.  Besides  the  .suspension  incident  to  the  stale  of  war,  a 
suspension  of  commercial  intercourse  with  the  enemj'  was  specialh'  directed  by  Act  of 
Congress  of  July  13,  1861,  and  proclaimed  by  the  President  on  August  16,  1861.  By 
nuthority  conferred  by  the  same  statute.  General  Begulations  couceiuing  commercial 
intercouVse  with  and  in  the  Stales  declared  in  insurrection  were  api^iovcd  by  the 
President,  Jauuar}'  26,  1864.  and  i)ubii»hed  in  G.  O.  53,  Dept.  of  tiie  Gulf,  of  April 
29,  1864. 

Non-intercourse. — It  is  a  fundamental  principle  of  the  law  of  war  that,  during  a  state 
of  war,  all  commercial  intercourse  between  the  belligerents  is  interdicted  and  made 
illegal  except  when  and  where  it  may  be  expressly  authorized  by  the  Government.  See 
note  1,  supra;  Dig.  J.  A.  Gen.,  468,  par.  1. 

Offenses  against  the  law  of  non-intercourse  between  the  belligerents  in  time  of  war 
are  no  less  such  when  committed  by  foreigners  than  when  committed  by  citizens.  Thus 
where  certain  persons  made  their  way  early  in  the  late  war  from  Scotland  to  South  Caro- 
lina, engaged  for  a  considerable  period  in  the  manufacture  of  treasury  notes  for  the 
Confederate  authorities,  and  at  the  end  of  their  imployment  came  secietly  and  without 
authority  into  our  lines  with  the  design  of  returning  to  their  home,  held  that,  though 
British  subjects,  they  had  identified  themselves  with  the  cause  of  the  enemy,  and  were 
properly  amenable  to  trial  for  the  offense  of  penetrating  our  military  lines  in  violation  of 
the  laws  of  war.     Ihid..  469,  par.  4.     See,  also,  pars.  5  and  6,  ihid. 

Correspondence  with  the  Enemy. — Held  (January,  1865)  that  a  system  of  correspond- 
ence which  had  been  concerted  and  maintained  between  northern  and  southern  news- 
papers by  means  of  an  interchange  of  published  communications  entitled  "  Personals  " 
was  an  evasion  of  the  rule  interdicting  intercourse  with  the  enemy  in  time  of  war,  and, 
not  being  within  the  regulations  established  for  correspondence  by  letter  between  the 
lines  by  flag  of  truce,  should  not,  however  innocent  might  be  many  or  most  of  the  com- 
munications, be  sanctioned  by  the  Government,  but  that  the  proprietors  of  the  norihern 
newspapers  concerned  should  be  notified  that  unless  the  practice  were  discontinued  they 
would  be  liable  to  be  proceeded  against  for  promoting  correspondence  with  the  enemy 
in  violation  of  the  laws  of  war  or  of  the  special  Act  of  February  25,  1863.*  Ibid.,  470, 
par.  8. 

There  can  be  no  doubt  as  to  the  authority  of  the  commander  of  an  army  in  occupa- 
tion and  government  of  the  enemy's  country  to  suppress  a  newspaper  or  other  publica- 
tion deemed  ])y  him  to  be  injurious  to  the  ]mblic  interests  in  exciting  opposition  to  the 
ilomiiuint  authority  or  encouraging  the  support  of  the  enemy's  cause  on  the  part  of  the 
inhabitants.  A  newspaper  may  be  a  pow^erful  agent  for  such  a  purpose,  and  when  it  is 
so  it  mav.  under  the  laws  of  war,  as  legally  be  silenced  as  may  a  fort  or  battery  of  the 
enemv  iii  tlie  field.     Ibid.,  469,  par.  7.     See,  also,  the  46th  Article  of  War. 

Contributions,  etc.— The  taking  possession,  by  the  order  of  the  commander  of  the 
military  department  at  New  Orleans,  for  the  use  of  the  military  service  in  the  prosecu- 
tion ofthe  war.  of  moneys  belonging  to  enemies  on  deposit  in  the  banks  of  that  city, 
while  occupied  (in  1863)  by  our  Army,  held  an  act  justified  by  the  strict  law  of  war.f 
Ibid. .  470,  par.  9. 

Contributions  of  money  exacted  from  the  enemy  by  competent  military  authority 


49 


*  See  a.  O.  No.  10,  Department  of  the  Kast,  1Sfi.5. 

+  See  New  Orleans  u-:.  Sreamhoat  CoTnpanv.<iO  Wallace.  394;  Witherspoon  vs.  Farmers' Bk.,  SDuvall, 
.97.  But  in  Planters'  Bank  vs.  Union  Bk  .  Id  Wallacf ,  48.3,  this  particular  order  was  held  to  have  been 
an  exceerline  of  authority,  not  l)ecau.se  nnauiliorized  by  the  law  of  war,  but  for  the  reason  that  a  pre- 
vious commander.  General  Butler,  bv  liis  proclamatif>ii,on  first  occupying  the  city,  of  May  I.  1862.  had 
pledged  the  Governmeat  to  the  holding  inviolate  of  all  rights  of  property.  And  see  The  Venice,  2 
Wallace,  358. 


MARTIAL  LAW.  303 

3.  Application  of  Martial  Law  to  Domestic  Territory  in  Case  of  Civil 
Disorder,  or  of  Resistance  to  the  Execution  of  the  Laws. — This  subject  may 
also  be  regarded  from  tlie  point  of  view  of  its  application,  in  a  modified 
form,  to  a  portion  <>f  the  territory  of  the  United  States  in  which,  by  reason 
of  civil  disturbance  or  resistance  to  the  execution  of  the  laws,  tlie  proper 
civil  authorities  are  unable  to  preserve  the  peace  or  to  afford  adequate  pro- 


heing  jiistifiod  by  the  law  of  war  and  conquest,*  held  that  a  tax  of  five  dollars  per  bale, 
levied  (in  1S64)  by  tiie  iiulitary  connnauder  at  New  Orleans,  General  Caiiby.  upon  totUju 
brou^'lu  into  that  eity  and  applied  to  liospiial,  sanitary,  and  charitai)le  purposes,  was 
anthori/ed  under  tlie  discretionary  power  willi  whieb  such  a  coinniander  was  properly 
invested  in  time  of  war.f     Di,i,^  J.  A.  Gen.,  470,  par.  10. 

Military  Courts.— It  is  authorized  by  the  laws  of  war  for  a  military  officer  command- 
ing in  time  of  war  in  a  region  in  military  occupation,  and  where  the  ordinary  courts  are 
closed  by  the  exigencies  of  liie  war,  to  appoint  a  special  court  or  judge  for  the  deterunna- 
tion  of  cases  not  properly  cognizable  t)y  the  ordinary  military  tribunals.  In  the  late 
war  such  courts  were  not  unfrequently  constituted,  and  were  conimoidy  designated 
proimt  courts.  Such  courts  had  no  jurisdiction  of  purely  military  offen.ses  (i.e.,  offenses 
which  the  Articles  of  War  make  cognizable  by  court-martial),  and  were  therefore  not 
properly  authorized  to  impose  forfeitures  of  pay  or  other  strictly  nnlitary  punishments 
upon  officers  or  soldiers  of  the  Army.  These  courts  were  in  general  resorted  to  as  sub- 
stitutes for  the  ordinary  police  courts  of  cities,  and  their  jurisdiction  was  in  general  con- 
lined  to  cases  of  breaches  of  the  peace  and  of  violation  of  such  civil  ordinances  or 
military  regulations  as  might  be  in  force  for  the  government  of  the  locality.  Some  of 
these  courts,  however,  took  cognizance,  in  the  course  of  their  existence,  of  cases  of  very 
considerable  importance,  civil  as  well  as  crinunal.t     Ibid.,  471,  par.  12. 


*  Lewis  vs.  McGuire,  3  Bush,  QO-^:  Clarlv  r.s.  Dick,  1  Dillon,  8.  And  see  Maj.-Gen.  Scott's  order  (G.  O. 
89.").  Hdqrs.  of  .\rmy.  1847)  levying  assessments  upon  Mexican  communities  for  the  support  of  the  mili- 
tary government  and  occuiiation. 

t  See  Hamilton  vs.  Dillon,  •,>!  Wallace.  73. 

t  See  the  following  General  Orders  establishing  or  relating  to  provost  courts  and  similar  tribunals: 
Q.  O.  41.  Dept.  of  Virginia,  18e3:  do.  45,  Dept.  of  the  (iulf.  18G3;  do.  6.  77,  id..  1864;  do.  103,  14C,  Dept.  of 
Washington.  1865;  do.  39.  id..  1,«!GU:  do.  10:i.  Dept.  of  the  South,  1865;  do.  30.  .38,  49.  68.  Dept.  of  S.  Caro- 
lina 1805;  do.  37,  id..  1866;  do.  31.  Dept.  of  the  .Mississipoi,  1S65;  do.  1^.  Dept.  of  Arkansas.  1865;  do.  5, 
Mil.  Div.  of  the  James,  1865;  do.  31,  First  Mil.  Dist..  1867;  Circ.  Second  id..  May  15,  1867;  G,  O.  29,  61, 
id.,  1S68;  do.  4,  Fifth  id.,  1860:  also  Gen.  Wool's  (}.  O.  516  of  1847. 

While  the  majority  of  these  special  tribunals  were  confined  to  the  exercise  of  such  functions  as 
are  commonly  devolved  upon  police  or  justices'  courts,  their  authority,  when  empowered  for  the  pur- 
pose by  a  competent  militaiy  commander,  to  take  cognizance  of  important  civil  actions  has  been 
afllrmed  by  the  Supreme  Court  of  the  United  States  in  the  case  of  the  IMechs.'  and  Traders'  Bk.  t'.-!. 
L'nion  Bk.,  'i-i  Wallace,  '.276,  in  which  a  "  provost  court.''  established  at  New  Orleans  by  an  order  of  the 
department  conmiauder,  of  May  1,  186-.'.  was  held  to  be  a  lawful  tribunal,  and  a  judgment  rendered  by 
it  in  an  action  for  the  recovery  of  $I'iO,000,  money  borrowed  by  one  l)ank  from  another,  was  recognized 
as  legal.     (See  this  case  also  in  25  Ija.  .\n.,  387.) 

So.  the  authority  of  the  •'  I'rovisional  Coiu't  of  Louisiana  '"  (which  succeeded  the  "  provost  court" 
last  indicateil,  and  was  established  by  the  President  in  an  executive  order  of  Oct.  20, 1862)  to  determine 
a  cause  iu  admiralty  was  aflirmed  by  the  United  States  Supreme  Court  in  The  Grapeshot.  9  Wallace. 
r29,  and  later  its  jurisdiction  in  a  civ"il  action  on  a  mortgage  debt  was  recognized  by  that  tribunal  in 
Bmke  I's.  Miltenberger.  19  Wallace,  519.  (And  see  the  same  case,  as  Burke  r.s-.  Tregree.  in  22  La.  .\b., 
629.)  The  authority  of  the  same  court  to  take  cognizance  of  a  case  of  murder  and  one  of  arson  (as 
also  of  civil  controversies)  was  maintained  in  an  elaliorate  opinion  of  its  judge,  Hon.  C.  A.  Peabody  (in 
1865),  in  the  i-ases  of  the  United  States  iw.  Reiter  &  Louis,  reported  in  13  Am.  Lnw  Reg.,  534. 

The  civil  jurisdiction  of  a  simdnr  war  court -the  "  commission  "  established  by  the  department 
commander  in  .Memphis  in  1863— was  similarly  recognized  in  Hefferman  vs.  Porter,  6  Cold..  391.  And 
as  to  the  full  authority  of  this  tribtmal  as  a  substitute  for  the  ordinary  civil  courts  of  the  locality,  see, 
also.  State  vs.  Stillman.  7  Cold.,  311.     But  see.  cdntrn.  Walsh  r.s-.  Porter,  12  Heisk..  401. 

Ill  the  cases  thus  sustaining  the  action  of  special  tribumils  during  the  late  war.  the  courts  in  general 
refer  to  the  earlier  and  leading  case  of  Leitensdorfer  v.t.  Webb,  '20  Howard,  176,  in  which  was  affirmed 
the  authority  of  the  courts  established  in  1846  in  New  Mexico  as  a  part  of  the  system  of  civil  govern- 
ment instituted  by  Gen.  Kearney,  the  military  comnianilant.  (With  this  case  constilt  al-so  United  States 
vs.  Rice,  4  Wheatbn,  254;  Cross  I'.s-.  Harrison.  It'i  Howard,  164.) 

The  reasonintr  upon  which  the  ab.ive-cited  Inter  nilinirs  is  ba.sed  is.  that  the  authority  to  create 
courts  with  a  civil  as  well  as  a  criminal  jurisdiction  in  a  conquered  country  in  military  occupation 
attaches  to  the  dominant  power  by  the  law  of  war  and  of  nations,  as  an  incident  to  the  power  to  estab- 
lish a  militarv  govermnent;  that  it  is  not  otdy  the  right  but  the  duty  of  the  conqueror  to  institute  such 
courts  •'  for  the  securitvof  persons  and  pi-operty  and  for  the  aiitninistration  of  justice  ";  ami  that  when 
during  the  late  war  such  courts  were  created  liy  commanding  generals— such  as  the  commamlers  of 
separate  departments  or  armies— the  order  of  the  Cinnmander  was  to  be  presumed  to  be  the  order  and 
act  of  the  President. 

For  the  criminal  jurisdiction  exercised  in  enemy's  territory  by  military  commissions,  see  the  article 
so  entitled,  post. 


30 J:  MILITARY  LAW. 

tectiou  to  life  and  proi)erty.  This  is  martial  law  in  the  proper  sense  of  the 
term,  and  to  understand  its  character  and  operation  from  this  point  of  view 
it  is  necessar}'  to  regard  the  question  from  the  stand^wint  of  the  Constitu- 
tion. 

How  Different  from  Military  Law. — Military  law,  as  has  been  seen,  is  in 
general  statutory  in  character,  and  regulates  the  conduct  of  military  persons 
at  all  times  and  in  all  places,  without  as  well  as  within  the  territorial  juris- 
diction of  the  United  States.  Martial  law,  on  the  other  hand,  is  not 
statutory  iu  character,  and  arises  in  every  case  out  of  strict  military 
necessity.' 

Declaration  or  Recognition;  Source  of  Authority. — It  is  not  created  by 
law,  for,  as  will  presently  l)e  seen.  Congress  is  without  })ower  to  make  or 
enforce  such  an  enactment;  for  a  similar  reason — the  want  of  constitutional 
authority — it  cannot  be  called  into  being  by  an  exercise  of  legal  discretion 
on  the  part  of  the  judiciary  or  Executive;  its  existence,  however,  as  a  matter 
of  fact,  may  and  iu  a  proper  case  must  be  recognized,  or  declared  by  the 
Executive,  as  a  question  of  overruling  necessity,'^  but  its  existence  is  recog- 
nized bv  the  several  departments  of  the  Government  solely  as  a  matter  of 


'  Martial  law  is  a  modified  degr'ie  of  the  law  of  war,  or  a  law  assimilated  to  the  latter, 
called  iuto  exercise  temporarily  and  for  a  specific  purpose,  at  a  time  of  war  or  public 
emergency,  and  generally  in  a  place  or  region  not  constituting  enemy's  country,  or  under 
permanent  military  government.*  Whether  proclaimed  by  the  President  or  declared  by 
a  competent  military  commander,  martial  law  overrides  and  supersedes,  for  the  time 
being  all  civil  law  and  authorit}',  except  in  so  far  as  the  same  may  be  left  operative  by 
the  terms  of  the  announcement, f  or  the  action  or  acquiescence  of  the  dominant  power. 
While  the  status  of  martial  law  continues,  the  military  power,  instead  of  being  subordi- 
nate, is  superior  to  the  civil  power,  and  the  natural  and  normal  condition  of  things  is 
thus  reversed.  But  while  martial  law  will  warrant  a  resort  by  the  commander,  at  his 
will,  to  summary  and  arbitrary  measures,  by  which  the  liberty  of  the  citizen  may  be 
restrained,  his  action  coerced,  and  his  rights  suspended,  it  caiinot  be  availed  of  by  sub- 
ordinates to  justify  acts  of  unnecessary  violence,  personal  persecution,  or  wanton  wrong.* 
Dig.  J.  A.  Gen.,  488,  par.  1. 

-  It  follows  that  there  are  occasions  when  martial  rule  can  properly  be  applied.  If,  in 
foreign  invasion  or  civil  war,  the  courts  are  actually  closed,  and  it  is  impossible  to 
administer  criminal  justice  according  to  law,  then,  on  the  theatre  of  active  military 
operations,  where  war  really  prevails,  there  is  a  necessity  to  furnish  a  substitute  for  the 
civil  aiUhority  thus  overthrown,  to  preserve  the  safety  of  the  Army  and  society;  and  as 
no  power  is  left  but  the  military,  it  is  allowed  to  govern  by  martial  rule  until  the  laws 
can  iiave  their  free  course.  As  necessity  creates  the  rule,  so  it  limits  its  duration;  for  if 
this  fToverninent  is  continued  after  the  courts  are  reinstated,  it  is  a  gross  usurpation  of 
power.  Martial  rule  can  never  exist  where  the  courts  are  open  and  in  the  proper  and 
unobstructed  exercise  of  their  jurisdiction.  Ex  parte  Milligau,  4  Wall.,  3.  This  is  the 
.status  of  martial  law  at  home  (or  as_a  domestic  fact);  by  which  is  meant,  military  power 
exercised  in  time  of  war,  insurrection,  or  rebellion  in  parts  of  the  country  retaining 
their  allegiance,  and  over  persons  and  things  not  ordinarily  subject  to  it.  Manual  for 
Couris-niartial,  3. 


*  Note  th«  distinction  between  military  government  proper  and  martial  lav)  as  ilhistrated  in  Milli- 
gan's  Case,  4  Wallaoe,  142. 

+  I.nthei-  iw.  Borrtf  n,  7  Howard,  13, 14;  United  States  vs.  Diekelman,  2  Otto,  536;  In  re  Egan.  ."SBlatch., 
319.  3-^1 :  Griffin  V.S-.  Wilcox,  21  Ind.,  3T6:  Johnson  us.  .Jones.  44  His,,  l.'JS;  In  re  Kemp:  16  Wise,  .3.59; 
Clode  (Military  and  Martial  I.aw).  183-191 ;  Hough  (Precedents),  514,549;  G.  O.  100,  War  Dept.,  1863, 
sec.  1. 

t  "  But  the  p;{istenre  of  ra.nrtial  law  dr>ps  not  anfhorize  general  military  license,  or  place  the  lives, 
liberty,  or  property  of  ihe  citizens  of  tlie  States  under  the  unlimited  control  of  every  holder  of  a  mill- 
tarv  coitiinission  "'  Despan  v.<t.  r)lnev,  1  Curtis,  .308.  And  see  Luther  vs.  Borden,  7  Howard,  14;  G.  O. 
100,  War  Department,  1863,  Sec.  I,  §4. 


MARTIAL    LA  W.  <^*^^ 

necessity,  and  not  as  a  status  which,  under  any  authority  conferred  by  the 
Constitution,  it  is  within  their  power  to  create  or  terminate. 

The  (;Jovernment.  under  the  Constitution,  beinj,'  one  of  limited  and 
defined  powers,  it  follows  that  there  can  be  no  exercise  of  authority,  by  any 
department  of  the  (iovernment  so  created,  unless  such  authority  is  conferred 
by  the  Constitution,  citlier  expressly  or  by  necessary  inii)lication.  The 
power  to  establisii  martial  law,  if  it  exists  in  any  department  (A  the  Federal 
(iovernment,  is  one  of  the  highest  importance,  since  it  involves,  not  the 
power  to  make  and  execute  laws,  but  the  right  to  suspend  tlie  operation  of 
all  law,  and  to  replace  it  for  a  limited  time  by  a  form  of  government 
entirely  arbitrary  in  character  and  not  resting  upon  the  will  of  the  people 
or  subject  to  the  control  of  the  constituted  authorities.  If  it  had  been 
intended  by  the  framers  of  the  Constitution  to  confer  such  a  power  upon 
any  department  of  the  Federal  Government,  it  would  have  been  vested  by 
that  instrun)ent,  in  unmistakable  terms,  in  some  one  of  the  recognized 
departments  of  government  and,  from  its  nature,  would  have  been  accom- 
panied by  strict  and  definite  limitations.  A  careful  examination  of  tlie 
C'onstitution  makes  it  clear  that  no  such  power  was  conferred,  or  intended 
to  be  conferred,  upon  any  department  of  the  Government,  either  directly  or 
by  necessary  implication. 

When  in  Existence;  By  Whom  Recognized. — It  has  been  seen  that 
martial  law  comes  into  being,  as  a  quedion  of  imperative  necessity,  and  as 
such  may  be  recognized  by  the  Executive  only  when  the  proper  civil 
authorities  are,  for  some  controlling  reason,  unable  to  enforce  the  laws  or 
to  preserve  the  peace  by  a  resort  to  the  ordinary  agencies  provided  for  that 
purpose.  Its  exercise  can  only  be  justified  by  the  emergency  of  an  existing 
situation,  when  life  and  property  can  only  be  protected  by  an  exercise  of 
military  power  or  by  the  use  of  military  force.'  It  disappears,  with  the 
emergency  which  brought  it  into  being,  when  such  forcible  resistance  to 
the  execution  of  the  laws  has  been  overcome,  or  has  ceased,  and  the  civil 
authority  has  been  enabled  to  resume  the  exercise  of  its  appropriate  func- 
tions.*' 

How  Declared,  or  Recognized  to  Exist. — It  has  been  seen  that  the  status 
of  martial  law  is  the  result,  not  of  legislation  or  of  executive  or  judicial 
action,  but  of  emergencij  or  necessity.     While,  therefore,  the  President  may 

'  See  note  2.  page  304,  ante. 

-  The  occnsioii  for  tlif  exercise  of  martial  law  properly  censes  when  liio  cnierireiicj' 
lias  passed  wliich  maiic  it  necessary  or  expedient  *  So— tlie  commander  of  the  Middle 
Military  Department  bavinir.  in  view  of  liie  presence  in  the  department  of  an  army  of 
tlie  enemy,  proclaimed,  by  order  of  .Tune  30,  1863.  a  state  of  martial  law  in  Baltimore 
city  and  county  and  the  connties  of  the  western  shore  of  Maryland,  with  the  assurance 
exi>ressed  that  such  status  should  not  extend  beyond  the  necessities  of  tlie  occ;ision— /((rW 
(.lune.  1865,)  that,  as  the  exii:eti<'v  had  long  ceased  to  exist,  the  order,  though  never  in 
terms  revoked,  should  properly  be  considered  as  no  longer  operative.  Dig.  .J.  A.  Gen., 
489,  par.  4. 

•  In  re  Egan,  5  Blatch.,  319.  a^J;  In  the  Matter  of  Martin,  45  Barb.,  145;  Hough  (Precedents),  535. 


306  MILITARY  LAW. 

not  create  the  stains,  he  may,  in  the  event  of  a  sufficient  emergency,  recog- 
nize its  existence  by  proclamation  or  other  execntive  act,  and  announce  his 
purpose  of  making  use  of  such  measures,  involving  the  use  of  military  force, 
as  may  be  necessary  to  bring  about  the  restoration  of  civil  order  and  the 
lawful  supremacy  of  the  civil  authority.  Such  a  proclamation  may  be  issued 
by  the  President  or  by  the  proper  military  commander.  It  should  describe 
the  emergency  and  define  the  limits,  territorial  or  otherwise,  within  which 
it  exists;  and  should  prescribe  such  rules  of  conduct  for  the  guidance  of 
individuals  as  are  warranted  by  the  strict  necessities  of  the  case.  It  is  cus- 
tomary, in  such  proclamations,  to  call  upon  all  law-abiding  citizens  to  assist 
in  the  restoration  of  order  by  strict  observance  of  the  laws,  by  continuing  in 
the  quiet  pursuit  of  their  usual  avocations,  and  by  refraining  from  partici- 
pation in  assemblages  which  are  or  are  likely  to  become  tumultuous  or 
otherwise  unlawful.  Insurgents  and  other  disaffected  or  evilly-disposed 
persons  are  warned  of  the  illegality  of  their  conduct,  and  of  the  consequences 
which  will  ensue  upon  a  continuance  of  the  same. 

Extent  of  its  Application. — As  the  emergency  may  be  in  the  nature  of 
an  insurrection,  that  is,  in  resistance  to  the  execution  of  all  laiv,  or  in  resist- 
ance to  the  execution  of  a  single  law,  tlie  employment  of  force  must  be  in 
direct  proportion  to  the  emergency.'  It  may  thus  consist  in  the  furnishing 
of  support  to  the  civil  authority  in  the  execution  of  a  single  enactment, — the 
neutrality  laws,  or  the  laws  regulating  interstate  commerce,  for  example, — 
or  it  may  become  necessary  to  establish  military  government  in  a  disturbed 
district.  The  kind  and  amount  of  force  used  in  any  case  must  be  in  direct 
proportion  to  the  resistance  to  be  overcome,  and  can  be  applied  only  during 
the  continuance  of  such  resistance  to  the  execution  of  the  laws.' 

By  Whom  Exercised. — Martial  law  is  executed  by  the  general  command- 
ing the  military  forces  in  occupation  of  a  disturbed  district;  it  is  exercised, 
under  the  direction  of  the  President,  the  constitutional  commander-in-chief, 
in  conformity  with  the  usages  of  war  or  the  necessities  of  the  case,  as  deter- 
mined by  the  extent  and  character  of  an  existing  emergency.  Where  a  city 
or  district  has  been  put  under  martial  law  by  the  commanding  general,  he 
becomes  its  supreme  governor,  and,  in  governing,  is  ordinarily  to  be  pre- 
sumed to  be  empowered  to  exercise  the  same  authority  which  the  President 
might  have  exercised  had  he  proclaimed  martial  law  therein. 


'  See,  in  this  connection,  General  Orders,  No.  100,  A.  G.  O.,  of  1863,  and  the  chapter 
entitled  The  Employ.ment  of  Militaky  Force. 

''  In  all  cases  of  civil  (lisonlers  or  domestic  violence  it  is  the  duty  of  the  Army  to 
preserve  an  attitude  of  indill'erence  and  inaction  till  ordered  to  act  by  the  President,  by 
theaiUhorify  of  tlie  Constitution  or  of  Sec.  3150,  5297,  or  5298,  Rev.  Sts..  or  other  public 
statute.  An  officer  or  soldier  may  indeed  interftMe  to  arrest  a  person  in  the  act  of  com- 
mitting a  crime,  or  to  prevent  a  lireach  of  the  peace  in  his  presence,  but  this  lie  does  as 
a  ciliz.en  and  not  in  his  military  capacity.  Any  conil)ined  effort  by  the  military,  as 
such,  to  make  arrests  or  otlierwise  prevent  breiiches  of  the  peace  or  violations  of  law  in 
civil  cases,  except  by  the  order  of  the  President,  must  neoessariiy  be  illegal.  In  a  case 
of  civil  disturbance  in  violation  of  the  laws  of  a  State,  a  military  commander  cannot 


MARTIAL  LAW.  3U7 

Rules  for  its  Exercise. — The  exercise  of  martial  law  must  be  conservative 
in  character;  tlie  civil  laws,  even  in  an  extreme  case,  are  not  repealed  or 
annulled,  but  temporarily  suspended,  and  should  be  conformed  to  in  spirit 
even  where  their  strict  execution  is  impossible.  No  measures  involving 
restraints  upon  personal  liberty  or  the  taking  or  destruction  of  property 
can  be  resorted  to  unless  warranted  by  an  existing  emergency.  The  status 
itself  being  the  result  of  emergency,  every  step  taken  must  be  with  a  view 
to  the  restoration  of  order,  must  be  justilied  by  the  strict  necessities  of  the 
existing  situation,  and  must  have  in  view  such  restoration  of  order  and  the 
replacement  of  the  lawful  civil  authority.  Tliis  purpose  will  be  accom- 
plished, as  to  a  district  in  insurrection,  by  the  dispersal  of  rioters  and  by  the 
capture  or  apprehension  of  those  who  have  fermented  the  disorder  or  have 
actively  participated  in  the  insurrectionary  movement. 

MILITARY    C03IMISSI0NS. 

Authority  and  Function. — To  the  successful  exercise  of  martial  law, 
especially  in  the  territory  of  the  enemy,  some  form  of  tribunal  having  juris- 
diction to  try  and  punish  crimiiud  olfenses  is  absolutely  essential.  Such 
power  cannot  be  exercised  by  courts-martial,  which  are  created  bv  and 
derive  their  jurisdiction  from  enactments  of  Congress,  and  martial  law  or 
martial  rule,  as  has  been  seen,  is  not  statutory  in  character  and  derives  its 
sanction  from  the  laws  of  war. 

volunteer  to  iutervene  with  his  command  without  incurring  a  personal  respousibilit}'  for 
his  acts.  In  the  absence  of  the  requisite  orders  he  may  not  even  march  or  arra}'  his 
command  for  tiie  purpose  of  exerting  a  moral  effect  or  an  effect  in  terrorem  ;  such  a 
demonstration  indeed  could  only  compromise  the  authority  of  tlie  United  States  while 
insulting  the  sovereignty  of  the  State.     Dig.  J.  A.  Gen.,  164,  jiar.  7. 

It  sometimes  happens  that  '•  the  initiation  of  a  system  of  martial  law  is  made  necessary 
by  the  occurrence  of  events  which  afford  the  Government  no  oi)portunity  for  fore- 
thought ;  indeed,  the  emergency  may  be  so  great,  and  tlie  di.sorder  may  suddenly 
assume  .such  formidable  dimensions,  as  to  give  no  time  for  Executive  consideration,  and 
martial  law  may  go  into  operation  without  any  deliberate  proclamation  of  its  existence. 
In  ordinary  circumstances,  a  riot  whicii  the  peace  officers  endeavor  to  suppress  precedes 
it.  Then  troops  are  called  in  to  aid  the  civil  power,  and  act.  for  a  time  :it  least,  under 
the  directions  of  the  magistrates.  From  necessity  or  supinene.ss  the  latter  may  tiilicr 
retire  or  their  autliority  may  be  completely  destroyed,  so  that  the  military  olticer  alone 
has  to  suppress  the  riot  and  restore  peace.  Thus  a  united  force  of  constables  and 
soldiers,  originally  arrayed  under  tiie  civil  power,  in  tiie  course  of  events,  pass  un>ler 
the  command  of  tiie  mililary  officer,  who  riglitly  assumes  the  responsibility — when  the 
civil  authorities  have  shown  themselves  incaiiablc — of  upholding  public  order.  Such, 
in  outline,  were  the  facts  of  the  case  in  1780,  when  the  followers  of  Lord  George  Gordon 
sought  to  de.^^troy  London.  The  military,  in  acting  without  the  civil  power,  were  so  far 
supreme  ;  but  this  supremacy  ceased  when  the  riots  were  put  down,  and  the  inMsoners 
were  handed  over  to  and  tried  bv  the  civil  tribunals  of  the  country."  Clode,  Mil.  Law, 
187:  ibid.,  II.  Mil.  Forces  of  the" Crown,  Ifif).  (IB"),  (>:]ti. 

For  the  reason  above  stated,  a  proclamati(Mi.  though  usual  as  a  warning  to  those  thus 
made  subject  thereto,  is  not  a  condition  inecedcnt  essential  to  the  establishment  of 
martial  law.  Sir  D.  Dundas.  Ceylon  Inrpiiry,  IS.^0,  Ques.  5459:  Opinion  of  Lords 
Campbell  and  Cranworth.  II.  Clode,  Mil.  Forces,  400.  The  same  remark  applies  to  the 
reading  of  the  Riot  Act  in  ordinary  civil  commotions.     Clode,  Mil.  Law,  187. 


308  MILITARY  LAW. 

By  a  practice,  therefore,  dating  from  1847,"  and  renewed  and  firmly 
established  during  the  late  war,"  military  commissions  have  become  adopted 
as  authorized  tribunals  in  this  country  in  time  of  war.  They  are  simply 
criminal  war-courts,  resorted  to  for  the  reason  that  the  jurisdiction  of 
courts-martial,  created  as  they  are  by  statute,  is  restricted  by  law,  and 
cannot  be  extended  to  include  certain  classes  of  oifenses,  which  in  war  would 
go  unpunished  in  the  absence  of  a  provisional  forum  for  the  trial  of  the 
offenders.  Their  authority  is  derived  from  the  law  of  war,^  though  in  some 
cases  their  powers  have  been  added  to  by  statute.^  Their  competency  has 
been  recognized  not  only  in  Acts  of  Congress,"  but  in  executive  proclama- 
tions," in  rulings  of  the  courts,'  and  in  opinions  of  the  Attorneys-General." 

'  The  court  which  tried  Major  Andre  dining  the  War  of  tlie  Revolution,  though  in 
imuie  a  couri-niariial,  was  in  fact  a  military  coniniissioii,  as  a  general  court-martial  was, 
under  the  then  existing  Articles  of  War,  without  power  to  take  cognizance  of  the  offense 
of  being  a  spy  when  committed  by  an  individual  of  tiie  enemy.  See  Maj.-Geu.  Scott's 
G.  O.  20.  Hdqrs.  of  Army,  Tampico,  Feb.  19,  1847,  republislu  d  "with  imporlant 
additions  "  in  G  O.  1!)0  and  287  of  the  same  year.  And  see  the  following  orders 
convening  military  commissions,  issued  by  Gen.  Scott  :  G.  O.  iJdqrs.  of  Army,  1847, 
Xos.  81,  83,  121,  124,  147,  171,  194,  315,  239,  2G7,  270,  273,  292,  334.  335,  380,  392;  also 
No.  9  of  1848.  Also  the  following  issued  by  Gen.  Taylor:  G.  O.  66,  106,  112,  121,  of 
1847;  and  tLe  following  issued  by  Gen.  Wool:  G.  O.  140,  179.  216,  463,  476,  514, 
of  1847._ 

In  this  connection  note  also  the  institution  by  Gen.  Scott  of  "  councils  of  war  ' — 
sununary  courts  for  the  punishment  of  certain  vic^fatious  of  the  laws  of  war — as  exhibited 
in  G.  O.  Hdqrs.  of  Army  Nos.  181,  184,  and  372  of  1847  and  Nos.  35  and  41  of  1848. 

'^  The  first  niilitarj'  commission  of  the  war  is  believed  to  have  been  that  convened  by 
Maj.-Gen.  Fremont,  by  G   O.  118,  Western  Department,  St.  Louis,  Sept.  2,  1861. 

3  See  G.  O.  100,  War  Dept.,  1863,  Sec.  I,  ^  13;  do.  1,  Dept.  of  the  Missouri,  1862; 
do.  20,  Hdqrs.  of  Army,  1847;  U.  S.  vs.  Reiter,  13  Am.  Law  Reg.,  534;  State  vs.  Sti'llman, 

7  Cold.,  341  ;  Helferman  rs.  Porter,  6  do.,  697.  And  see,  also,  Opins.  Att.-Gen.  cited 
in  note  8,  post. 

■•  See  Act  of  March  3,  1863,  c.  75,  s.  30,  declaring  that  in  time  of  war,  etc.,  murder, 
manslautihter,  rubbery,  lai'ceny.  and  other  specified  crimes,  when  committed  by  person.s 
in  the  military  service,  shall  be  puinshable  by  sentence  of  court-martial  "  or  military 
conimi.ssion,"  etc. — an  enactment  repeated,  as  to  courts  martial,  in  the  58th  Article  of 
War  ;  also  s.  38  of  the  same  Act  (repeated  in  Sec.  1343.  Rev.  Sts.)  inaking  spies  triable 
by  general  court  martial  "  or  military  conunis>-ion '"  and  itunishable  with  death.  See, 
further,  Act  of  July  2,  1864.  c.  215,  s.  1,  l)y  which  commanders  of  departments  and 
commanding  generals  in  the  field  were  authorized  to  carry  into  execution  sentences  im- 
po.sed  by  yiiiliUtry  roramission  upon  guerrillas  ;  also  Act  of  .July  4,  18G4,  c.  253,  s.  6  and 

8  (not  now  in  force),  making  inspectors  in  tiie  Quartermaster  Department  triable  Jind 
ptuiishable  by  sentence  of  court-martial  or  "  military  conunission  "  for  fraud  or  neglect 
of  duty,  as  also  other  employees  and  officers  of  that  department  for  accepting  bribes 
from  contractors,  etc.;  also  the  Reconstruction  Act  of  March  2,  1867,  c.  1.53,  s  3,  by 
which  commanders  of  military  districts  were  authorized  to  convene  miiiiarp  commissions 
for  the  trial  of  certain  ollenders. 

'  See  the  Acts  cited  in  last  note,  together  with  Sees  1199  1343,  and  1344,  Rev  Sts.,  as 
also  the  recent  Appropriation  Acts  of  .Tuly  24,  1876,  Nov.  21,  1877,  .Tune  18,  1878,  June 
23,  1879,  and  May  4,  1880,  in  which,  among  other  items  for  the  Pay  Department,  appro- 
priation is  made  "for  compensatio?i  for  citizen  clerks  and  witnesses  attending  upon 
courts-martial  and  military  commissions." 

«  See  lh<>  proclamation^  of  Sept.  24.  1862   and  April  2,  1866. 

^  Ex  parte.  Vallandigham.  1  Wallace.  243  ;  In  the  Matter  of  Martin,  45  Barb.,  146  ; 
E.V  parte  Bright,  1  Utah,  145  ;  State  rs  Stillman  7  Cold..  341.  In  the  last  case  the  court 
say:  '  A  military  commission  is  a  tribunal  now(1H70)as  well  known  and  recognized 
in  tlie  laws  of  the  United  States  as  !i  court-mariial. "  It  has  been  "  recoirnized  by  the 
executive,  legislative,  and  judicial  depnrtmonts  of  the  government  of  the  United  States." 

«  See  5  Opin.s.  At. -Gen.,  .55  ;  Wid.,  297  ;  12  id.,  332  ;  13  id.,  59  ;  14  id.,  249. 


MAiriJM.  LA  w:  309 

During  tlie  Kebellioii  tliey  were  employed  in  several  thousaiul  cases;  more 
recently  they  were  resorted  to  under  the  "  Iteconstniction  "  Act  of  18G7; 
and  still  later  one  of  these  courts  has  been  convened  for  the  trial  of  Indians 
as  ojfenders  ai^ainst  the  laws  of  war.' 

Constitution  and  Composition. — Except  in  so  far  as  to  invest  military 
coflimissions  in  a  few  cases  with  a  special  jurisdiction  and  power  of  punish- 
ment,' tlie  statute  law  has  failed  to  define  their  authority,  nor  has  it  nuide 
provision  in  regard  to  their  constitution,  composition,  or  jirocedure.  In 
consefiuence,  the  rules  which  apply  in  these  particulars  to  general  courts- 
martial  have  almost  uniformly  been  applied  to  military  commissions.  '  They 
liave  ordinarily  been  convened  by  the  same  ofUcers  as  are  authorized  bv  the 
Articles  of  AVar  to  convene  such  courts;  the  accusations  investigated  bv 
them  have  been  presented  in  charges  and  specifications  similar  in  form  to 
those  entertained  by  general  courts;  their  proceedings  have  been  similar  and 
similarly  recorded;  and  their  sentences  have  been  similarly  passed  upon  and 
executed. 

Composition. — Their  composition  has  also  >)een  the  same,  except  tliat 
the  minimum  of  members  has  been  fixed  by  usage  at  three.  They  have 
generally  also  been  sn])plied  with  a  judge-advocate  as  a  prosecuting  oflicer. 
A  military  commission  constituted  with  less  than  three  members,  or  which 
proceeded  to  trial  with  less  than  three  members,  or  which  was  not  attended 
by  a  judge-advocate  would  be  contrary  to  precedent.^  In  the  absence, 
liowever,  of  any  statutory  provision  on  the  subject,  a  commission  which 
departed  from  the  general  usage  in  any  of  these  respects  would  not  neces- 
sarily be  held  to  be  an  illegal  tribunal.' 

Jurisdiction. — ^Military  commissions  are  authorized  by  the  laws  of  war  to 
exercise  jurisdiction  over  two  classes  of  offenses,  committed,  whether  by 
civilians'  or  military  persons,  either  (1)  in  the  enemy's  country  during  its 
occupation  by  our  armies  and  while  it  remains  under  military  government, 
or  ("2)  in  a  locality,  not  within  the  enemy's  country  or  necessarily  within  the 
theatre  of  war,  in  which  martial  law  has  been  established  by  competent 
authority.'  The  two  classes  of  offenses  are:  (1)  Violations  of  the  laws  of 
war;  (2)  Civil  crimes,  which,  because  the  civil  authority  is  superseded  by  the 
military,  and  the  civil  courts  are  closed  or  their  functions  suspended,  cannot 


'  Dig.  J.  A.  Gen.,  499,  par.  1  ;  The  Case  of  the  Modoc  Indians  tried  by  militarv 
commission  in  July,  1873  (G.  C.  M.  O.  33,  War  Dept.,  1873).  See  14  Opins  Att.-Gen". 
249 

"  See  statutes  cited  in  note  4,  page  308,  ante. 
'  Dig.  J.  A.  Gen.,  500,  jmr.  2. 

*  Ibid. 

'  Tlie  General  Onicis  issued  liuring  the  late  war  contain  nearly  one  hundred  and 
fifty  cases  of  women  tried  by  military  commissions. 

*  See    Martial    Law,    t^    1.      And     note    in    this    connection    Cliief-Justice    Chase's 
description  of  the  jurisdiction  exercised  uiuler  mil  tary  government   and  martial  law. 
as  distinguisheil  from  that  conferreti  bj-  the  militarv  lawproner    in  A>  nart^^  MWU^'nu 
4  Wallace,  142.  -  i      .  /  -        =     . 


310  MILITARY  LAW. 

be  taken  cognizance  of  by  the  ordinary  tribunals.  In  other  words,  the 
militarv  commission,  besides  exercising,  nnder  tlie  laws  of  war,  a  jurisdiction 
of  offenses  peculiar  to  war,  may  act  also  as  a  substitute,  for  the  time,  for  the 
ref^ular  criminal  judicature  of  the  State  or  district,' 

A  militarv  commission,  whether  exercising  a  jurisdiction  strictly  under 
the  laws  of  war,  or  as  a  substitute  in  time  of  war  for  the  local  criminal 
courts,  mav  take  cognizance  of  offenses  committed,  during  the  war,  before 
the  initiation  of  the  military  government  or  martial  law,  but  not  then 
bronsfht  to  trial." 


'  Dig.  J.  A.  Geu.,  501,  par.  1. 

-  Ibid.,  503,  par.  2.  So  held  that  au  tiieiuy,  taken  prisoner  of  war,  was  triable  by  a 
miliiarv  commissiou  for  a  violation  of  Ibe  laws  of  war  conunilted  before  his  capture. 
But  when  an  oltieer  or  soldier  of  the  enemy's  army  is,  upon  capture,  charged  before  a 
militarv  commission  with  a  violation  of  the  laws  of  war,  the  proof  should  of  course  be 
clear  that  the   act   committed  was  as  charged,  i.e.,   was  not  a  legitimate  act  of  war. 

Ibid. 

Durino-  the  late  war  a  very  great  number  and  variety  of  ollenses  against  the  laws  and 
usages  of°  war — charged  either  generally  as  "violation  of  the  laws  of  war,"  or 
specificallv  by  their  particular  names  or  descriptions — were  passed  upon  and  punished 
by  milit;iiiv  commissions.  Of  these  some  of  the  principal  (commiitcd  mostly  by 
civilians)  were  as  follows  :  unauthorized  trading  or  commercial  intercourse  with  tiie 
enemv  ;  unauthorized  correspondence  with  the  enemy  ;  blockade-running  ;  mail-carry- 
ing across  the  lines  ;  drawing  a  bill  of  exchange  upon  an  enemy,  or  l)y  an  enemy  upon 
a  partv  in  a  northern  city  ;*  dealing  in,  negotiating,  or  uttering  Confederate  securities 
or  money  ;  f  manufacturing  arms,  etc.,  for  the  enemy  ;  furnishing  to  an  enemy  articles 
contraband  of  war  ;  dealing  in  such  articles  in  violation  of  military  orders  ;  imblicly 
expressing  hostility  to  the  U.  S.  government  or  sympathy  with  the  enemy  ;  coming 
witliin  tlfe  lines  of  the  army  from  the  enemy  without  authority  ;  violating  a  flag  of 
truce  ;  violation  of  an  oath  of  allegiance  or  of  an  amnesty  oalh  ;  violation  of  parole  by 
a  prisoner  of  war  ;  aiding  prisoner  of  war  to  escape  ;  unwarranted  treatment  of  Federal 
prisoners  of  war:  burning,  destroying,  or  obstructing  railroads,  bridges,  steamboats, 
etc.,  used  in  military  operations;  cutting  telegraph-wires  between  military  posts; 
recruiting  for  the  enemy  witiiin  the  Federal  lines  ;  engaging  in  "guerrilla"  or  partisan 
warfare  ;°assisting  Federal  soldiers  to  desert  ;  resisting  or  obstructing  an  enrollment  or 
draft ;  impeding  enlistments  ;  violating  orders  in  regard  to  selling  liquor  to  soldiers  or 
other  military  orders  of  police  in  a  district  under  military  government;  attempt 
without  success  to  aid  the  enemy  by  transporting  to  him  articles  contral)an(l  of  war  ; 
conspiracy  by  two  or  more  to  violate  the  laws  of  war  by  destroying  life  or  property  in 
aid  of  the" enemy.     Ibid.,  502,  par.  3. 

Of  the  ordinary  crimes  taken  cognizance  of  under  similar  circumstances  by  these 
tribunals,  the  most  frecpient  were  murder  and  manslaughter,  and,  after  these,  robbery, 
asriravated  assault  and  l)attery,  lanieny,  receiving  stolen  i)roperly.  rape,  arson,  burglary, 
riol,,  breach  of  the  peace,  attempt  to  bribe  piiblic  officers,  embezzlement  and  misappro- 
priation of  public  money  or  property,  defrauding  or  attemjiting  to  defraud  the  United 
States,  etc.     Ibid.,  50.'J,  par.  4. 

Not  unfrequently  the  crime  as  charged  and  found  was  a  combination  of  the  two 
species  of  offen.ses  above  indicated  ;  as  in  the  ca.se  of  the  alleged  killing  by  shooting  or 
iniwarrantnbly  harsh  treatment  of  officers  or  soldiers  after  they  had  surrendered,  or 
while  they  were  held  in  confinement  as  prisoners  of  war,  of  which  persons  were  in  sev- 
eral cases  d\iring  the  war  convicted  by  military  commi.ssions  under  the  charge  of 
"murder  in  violation  of  the  laws  of  war.":}:  A  more  recent  illustration  was  the  prin- 
cipal otfense  of  the  Modoc  Indians  (tried  by  military  commission  in  July,  1873),  wliich, 
as  a  treacherous  killing  of  an  enemy  during  a  truce,  was  charged  as  "  murder  in  viola- 
tion of  the  laws  of  war."g     Ibid.,  504.  par.  5. 


*  See  Britton  vs.  Biitlpr,  9  Blatcl!..  4."  ;  WilliaiiiR  vs.    :\Iobile  Sav.  Bk.,  2  Woods,  501  ;  Woods  vs. 
Wilder.  4?  N.  Yorli.  164  ;  Lacv  );.'■•.  SuKarriian,  12  Heisk.,  354. 
t  See  Horn  vs.  Lockliart.  17  Wallace.  580. 
t  See  G.  C.  M.  O.  607,  War  Dept..  1865  ;  do.  153,  id.,  1866. 
S  G.  C.  M.  O.  32,  War  Dept.,  1873. 


MARTIAL  LAW.  311 

From  the  jnrisdiction,  however,  of  military  commissions,  under  the  cir- 
cumstances above  indicated,  are  properly  excepted  such  offenses  as  are  within 
the  legal  cognizance  of  the  ordinary  criminal  courts  when,  upon  the  estab- 
lishing of  military  government  or  of  the  slatus  of  martial  law,  such  courts 
have  been,  by  express  designation  or  in  fact,  left  in  full  operation  and  pos- 
session of  their  usual  powers.  Thus,  although  during  a  consideralde  period 
of  the  Civil  AV'ar  the  District  of  Columbia  was  practically  placed  under  a 
mild  form  of  martial  law,  ordinary  criminal  offenses  committed  therein  by 
civilians  or  military  persons  were  in  general  allowed  to  be  tai^en  cognizance 
of  by  the  civil  tribunals,  which  were  at  no  time  seriously  interrupted  in  the 
exercise  of  their  judicial  functions.' 

It  is  a  further  restriction  upon  the  jurisdiction  of  the  military  commis- 
fiion  that,  except  where  it  may  be  invested  by  statute  with  a  jurisdiction 
concuj-rent  with  that  of  courts-martial  (as  by  sees.  30  and  38  of  the  Act  of 
March  3,  1863),"  its  authority  cannot  be  extended  to  the  trial  of  offenses 
which  are,  specifically  or  in  general  terms,  made  cognizable  and  punishable 
by  courts-martial  by  the  Articles  of  "War  or  other  statute.  In  repeated 
instances  during  the  late  war  the  proceedings  of  military  commissions,  in 
cases  in  which  these  tribunals  had  imnroperly  assumed  jurisdiction  of 
offenses  legally  triable  by  courts-martial  only,  were  recommended  bv  the 
Judge-Advocate  General  to  be  disapproved.' 

A  military  commission  convened  for  the  trial  of  offenses  under  the  law 
of  war  has  no  jurisdiction  of  civil  suits  or  proceedings  either  based  upon 
contract  or  brought  to  recover  damages  on  account  of  private  transactions  or 
personal  injuries/ 

So,  in  a  State  or  district  where  military  government  or  martial  law  has 
not  prevailed,  or,  having  prevailed  for  a  time,  has  ceased  to  be  exercised 
and  the  regular  criminal  courts  are  open  and  in  operation,  a  militarv  com- 
mission cannot  be  empowered  to  assume  jurisdiction  of  a  public  offense, 
although  the  nation  be  still  involved  in  war.' 

The  jurisdiction  of  a  military  commission  convened  under  the  law  of 
war  may  be  exercised  up  to  the  date  of  a  peace  agreed  upon  between  the 


'  Dig.  J.  A.  Gen.,  504,  par.  6. 

'  12  Statutes  at  Large,  736. 

3  Ibid.,  506,  par.  9.  See  the  leading  case  of  Ex  parte  Milligan,  4  Wallace,  1  :  also 
:Millican  rs.  Hovey,  3  Bis.sell,  13  ;  In  re  Murphy.  Woolworth,  143  ;  Devlin  r«  United 
States.  12  Ct.  CI.  271  ;  12  Opins.  Alt. -Gen.,  128. 

■•  Ibid.,  507,  par.  12,  As  to  the  civil  jurisdiction  of  special  courts  and  commissions 
instituted  during  the  late  war,  see  Martial  Law. 

^  Dig.  J.  A.  Gen.,  504,  par.  7.  A  fortiori,  where,  at  the  date  of  the  offense,  there 
was,  properly,  no  .state  of  war  in  which  the  nation  was  involved  with  an  enemy.  Thus 
held  (January,  1875)  that  a  military  commission  could  not  legally  be  convened  for  the 
trial  of  Indians,  for  violations  of  the  laws  of  war.  on  account  of  thefts,  robberies,  and 
murders  committed  by  them  upon  incursions  made  into  the  State  of  Texas,  where  said 
Indians  (unlike  the  Modocs,  see  note  1,  page  309,  ante)  were  mere  raiders,  with  whose 


312  MILITARY  LAW. 

hostile  parties  or  the  declaration  by  the  competent  authority  of  the  termina- 
tion of  the  war  status." 

As  to  the  special  statutory  juriscliction  with  which  the  military  commis- 
sion has  in  certain  cases  been  invested,  the  Acts  of  Congress  by  which  this 
has  been  conferred  and  defined  have  already  been  cited.  Of  these,  the  pro- 
vision of  the  Act  of  March  3,  18G3,  by  which  a  jurisdiction  concurrent  with 
that  of  the  court-martial  is  given  to  this  tribunal  in  cases  of  spies^  is  the 
only  one  now  in  force,  being  embodied  in  Sec.  1343,  Kevised  Statutes." 


tribe,  as  sucli,  the  IjDited  States  was  not  engaged  in  war,  and  whose  crimes,  therefore, 
were  not  covannXiQd  flagrante  hello* 

Where  tlie  State  was  not  under  martial  law  or  military  government,  the  fact  that  the 
offense  was  committed  by  a  prisoner  of  war  at  a  prison-camp  (within  the  Slate)  for  the 
eontinement  of  prisoners  of  war,  and  guarded  by  Federal  troops,  was  held  InsiifBcient  to 
give  a  military  commission  jurisdiction  of  the  case.  But  held  that  the  mere  fact  of  the 
appointing  by  the  Executive  of  a  "provisional  governor "  for  an  insurrectionary  State 
in  June,  1865,  prior  to  the  date  of  the  proclamation  (of  April  3,  1866)  declaring  the 
war  at  an  end  in  that  State,  and  while  the  territory  of  the  same  still  remained  in  mili- 
tary occupation,  did  not  operate  to  oust  military  commissions  of  jurisdiction  of  criminal 
offenses  committed  within  the  State.f 

'  Diir.  J.  A.  Gen..  507,  par.  11.  See.  also,  14  Opin.  Att.-Gen.,  250,  where  this  prin- 
ciple islipplied  to  an  Indian  war.     See,  also,  5  ibid.,  58. 

-  Dig.  J.  A.  Gen.,  506,  i)ar.  10.  Under  the  latest  of  these  Acts,  the  "Reconstruc- 
tion "  Act  of  March  3,  1867,  in  sec.  3  of  which  the  commanders  of  the  military  districts 
constituted  thereby  were  empowered,  in  their  discretion,  "to  organize  military  com- 
missions," in  lieu  of  the  "local  civil  tribunals,"  for  the  trial  and  punishment  of  "all 
ilisturbers  of  the  public  peace  and  criminals,":}:  it  was  held  by  the  Judge  Advocate- 
General  as  follows: 

That  the  military  commissions  convened  under  the  Act  would  properly  be  governed, 
as  to  their  form  of  procedure,  by  the  rules  and  forms  governing  military  commissions 
imder  the  laws  of  war,  while,  as  to  their  jurisdiction  and  power  of  punishment,  they 
would  in  general  properly  be  regulated  by  the  local  statutes  governing  the  courts  of 
which  they  were  substitutes. 

That,  being  substitutes  for  the  State  criminal  courts,  they  were  authorized  to  take 
cognizance  of  offenses  committed  (but  not  brought  to  trial)  before  the  date  of  the  Act, 
equally  as  of  those  committed  after  such  date. 

That  cases  of  soldiers  offending  against  the  criminal  law,  whose  offenses  were  not 
withiu  the  jurisdiction  of  a  court-martial,  might  legally  be  brought  to  trial  before  mili- 
tary commissions  convened  under  the  Act. 

That  comjnissions  ordered  under  this  Act,  being  in  lieu  of  the  State  tribunals,  could 
not  assume  to  fake  cognizance  of  a  case  within  the  jurisdiction  of  a  court  of  the  United 
States  in  operation  in  the  district. 

That  sentences  duly  adjudged  by  commissions  convened  under  this  statute,  and 
which  had  been  duly  and  finally  approved  by  the  competent  authority  (see  sec.  4  of  the 
statiUe),  might  legally  be  executed  prior  to  the  passage  of  the  Act  admitting  to  repre- 
sentation in  Congress  the  State  in  which  the  offense  was  committed;  but  that  such 
sentences  not  carried  into  effect  (or  of  which  the  execution  had  not  been  entered  upon) 
at  that  date  could  not  thereafter  legally  be  enforced. §  And  held  generally  that  all 
proceedings  of  military  commissions  which  remained  pending  or  incomplete  at  such 
date  became  tljcieupon  terminated.     Ibid.,  506,  par.  10. 


*  As  to  the  nature  of  tht"  hostility  whicli  may  propei-ly  liriiig  Indians  "  wittiin  the  description  of 
public  enemies,''' compare  13  Opiiis.' Att.-Gen.,  471.  That  a  detached  band  of  marauding  Indians  was 
not  an  "enemy"  in  the  sense  of  the  Act  of  March  3, 184!t,  (Sec.  3483,  Rev.  Sts.,)  providing  for  the  making 
good  of  damage  sustained  by  the  capture  or  destruction  of  certain  property  "  by  an  enemy,"  was 
held  V)y  the  Supreme  (Vnirt  in  Stuart  vs.  United  States.  18  Wallace,  84. 

f  See  Belding  vs.  State,  aS  Ark.,  31.5.  And  compare  13  Opins.  Att.-Gen.,  65,  66;  Coleman  vs.  Tennessee, 
7  Otto,  .=jI6. 

J  The  constitutionality  of  this  Act  and  the  legality  of  the  institution  under  it  of  military  commis- 
sions are  affirmed  by  Att.-CJen.  Hoar  in  13  Opin..  59-G7. 

§  Compare  United  .States  vs.  Tynen,  11  Wallace,  88,  where  it  is  held  that  "there  can  be  no  legal 
conviction,  nor  any  valid  judgment  pronounced  upon  conviction,  unless  the  law  creating  the  ofifense 
be  at  the  time  in  existence."    And  to  a  similar  effect  see  United  States  vs.  Finlay,  1  Ab.  U.  S.  R.,  364. 


MARTIAL   LAW.  313 

Procedure. — In  view  of  the  analogy  in  procedure  prevailing  between 
these  bodies  and  courts-martial,  it  has  been  held  by  the  Judge- Advocate 
Oeneral  that  military  commissions  would  properly  be  sworn  like  general 
courts-martial;  that  the  right  of  ciiallenging  their  members  should  be 
afforded  to  the  accused;  that  two-thirds  of  their  members  should  concur  in 
death  sentences,  and  that  the  two-years  limitation  would  properly  be  a])plied 
to  pnjsecutions  before  them.  None  of  these  features,  liowever,  are  made 
essential  by  statute.' 

Sentences. — Except  in  a  case  of  a  spy,  whose  sentence  must  be  death 
(Sec.  1343,  Kevised  Statutes),  the  discretion  of  the  military  commission  in 
the  imjiosition  of  sentence  is  not  in  terms  restricted  or  defined  by  the  exist- 
ing law.  The  sentence,  however,  should  award  a  criminal  pu  nshment:  a 
judgment  of  debt  or  damages,  on  conviction  of  a  criminal  offense,  would  be 
irregular,  and  properly  disapproved.  The  punishments  imposed  by  courts- 
martial,  though  sometimes  inappropriate,  are  not  therefore  necessarily  jire- 
cluded.  Where  a  military  commission  is  acting  iiractically  as  a  substitute 
for  a  State  criminal  court,  it  should  in  general,  in  determining  the  proper 
measure  of  punishment  to  be  inflicted,  take  into  consideration  the  State 
statute  law,  if  any,  prescribing  the  peiudty  or  penalties  for  the  offense.* 

Record;  Approval  and  Execution. — The  record  of  a  military  conmiissiou 
is  similar,  in  all  respects,  t(j  that  kept  by  a  general  court-martial.  The 
findings  and  sentence,  being  in  the  nature  of  recommendations  merely,  are 
not  operative  until  they  have  been  approved  or  adopted  by  the  convening 
authority.  In  practice  the  proceedings  are  reviewed  by  the  convening 
ofticer  and,  having  been  approved  or  confirmed,  are  carried  into  effect  by 
the  same  authority.'' 

Jurisdiction. — Tlie  jurisdiction  of  the  military  commission  is  derived 
primarily  and  mainly  from  the  law  of  war.  That  special  authority  has  in 
some  cases  been  devolved  upon  it  by  express  legislation  has  already  been 
noticed.' 

'  Die:.  J.  A.  Gen.,  501,  par.  3. 

'  Ibid..  508,  par.  1.  Si-e  State  vs.  Stillinuii,  7  Cold.,  341;  G.  O.  1,  Dcpt.  of  tlio  Mis- 
souri, 1862.  E.vcopt  wliere  tlie  death  sentence  was  pronounced,  tlie  punislunent  adjudged 
by  military  eoniniissinn.s  during  tlie  late  war  was.  in  tiie  great  inajorit}'  of  cases,  an 
imprisonment  for  a  certain  term  or  "till  tlie  etui  of  the  war."  Fines  were  sometimes 
imposed,  and  a  sending  beyond  the  lines  of  the  U.  S.  forces  was  not  infrequent.  A  confis- 
cation of  property  was  also  occasionally  adjudged.  In  many  instances  in  lieu  of  any 
punishment  it  was  directed  or  recommended  by  the  commission  tluU  the  accused  be 
reijuired  to  take  an  oaiii  of  allegiance  or  give  a  parole,  and  in  some  cases  also  to  give  a 
bond  for  future  loval  behavior. 

'  Benet,  203;  Ives,  278;  II.  Wiuthrop,  57. 

*  Dig.  J.  A.  Gen.,  501.  par.  1.     See.  also,  note  4,  page  308,  ante 


CHAPTER   XVII. 

HABEAS   CORPUS. 

Purpose  and  Effect. — The  nature  and  operation  of  the  writ  of  habeas 
corpus  have  elsewhere  been  explained.'  It  is  sufficient  to  say  at  this  time 
that  its  purpose  is  to  furnish  a  summary  remedy  for  all  cases  in  wliich  the 
person  of  a  citizen  is  subjected  to  unlawful  restraint  or  imprisonment. °  Both 
the  Federal  and  State  courts  have  power  to  issue  the  writ,  each  within  the 
sphere  of  its  constitutional  jurisdiction,  tlie  former  in  a  limited  number  of 
cases  arising  under  the  laws  of  the  United  States,  the  latter  in  cases  arising 
under  the  common  law,  or  the  statutes  of  the  State  within  which  the  court 
sits  and  from  which  its  jurisdiction  is  derived.  From  the  nature  and  com- 
prehensive character  of  their  jurisdiction  the  writ  is  issued  by  the  State 
courts  in  a  much  greater  number  of  cases  than  can  possibly  arise  in  the  more 
restricted  jurisdiction  of  the  Federal  courts.' 

Jurisdiction  of  the  Federal  Courts. — The  law  confers  power  upon  the 
Supreme  Court  and  the  several  Circuit  and  District  Courts  of  the  United 
States  to  issue  writs  of  habeas  corpus;  the  several  justices  and  judges  of  the 
said  courts,  within  their  respective  jurisdictions,  also  have  power  to  grant 
writs  of  habeas  corpus  for  the  purpose  of  inquiring  into  the  cause  of 
restraints  upon  liberty.* 

■  Military  Laws  of  the  United  States,  paragraphs  282-297;  Davis  Elementary  Law, 
pp.  49,  50. 

^  3  Blackstone  Com.,  130;  Ex  parte  Bollman,  4  Cranch,  95-97 ;  Ex  parte  Yerger,  8 
Wall..  95;  Ex  parte  Watkins,  3  Pet.,  202. 

2  The  subject  of  conflicting  jurisdiction,  in  respect  to  the  issue  of  this  writ  l)y  the 
State  and  Federal  courts,  will  presently  he  explained  (Hee.  post,  the  title  "  Conflict  of 
•Jurisdiction)."  It  is  suflicient  to  say  at  this  place,  in  explanation  of  the  above  stalonient, 
that  as  the  information  upon  which  a  court  acts  in  directing  the  issvie  of  the  writ  in  a 
particular  case  is  ex  parte  in  character,  and  therefore  incomplete,  in  that  it  does  not  fidly 
set  forth  the  authority  by  which  the  alleged  restraint  is  imposed,  it  follows  that  either  a 
State  or  Federal  tril)unal  may,  on  application  duly  made,  direct  the  issue  of  the  writ  in 
a  case  over  which  it  may  .subsequently  appear,  from  the  retvun  of  the  officer  holding  the 
j)risoner,  that  the  particular  court  was  without  jurisdiction.  So  soon,  therefore,  a'i  such 
want  of  jurisdiction  has  been  made  to  appear,  it  is  the  duty  of  the  court  to  desist  from 
the  further  prosecution  of  the  imjuiry  and  to  remand  the  prisoner  to  the  proper  custody. 
See,  also,  Ablcman  vs.  Booth,  21  How.,  506;  Tarble's  Case,  13  Wall.,  397;  Robb  vs.  Con- 
nolly, 111  U.  S.,  624. 

*  Sections  751  and  752,  Revised  Statutes.  Sec.  753,  Revised  Statutes,  however,  con- 
tains the  requirement  that  "the  writ  of  habeas  corpus  shall  in  no  case  extend  to  a  prisoner 
in  jail,  unless  where  he  is  in  custody  under  or  by  color  of  the  authority  of  the  United 
States,  or  is  committed  for  trial  before  some  court  thereof;  or  is  in  custody  for  an  act 
done  or  omitted  in  pursuance  of  a  law  of  the  United  States,  or  of  an  order,  process,  or 

314 


UADEAS  CORPUS. 


315 


"  The  purpose  of  the  writ  is  to  enable  the  court  to  inquire,  first,  if  the 
petitioner  is  restrained  of  his  liberty.  Jf  he  i^  not,  the  court  can  do  nothing 
but  discharj,'e  the  writ.  If  there  is  such  restraint,  the  court  can  then 
inquire  into  tlie  causes  of  it,  and  if  the  alleged  cause  is  unlawful  it  must  then 
discharge  the  petitioner.  *  *  *  In  the  case  of  a  man  in  the  military  or  naval 
service,  where  he  is,  whetlier  as  an  oflicer  or  private,  always  more  or  less 
su])ject  in  his  movements,  by  the  very  necessity  of  military  rule  and  sub- 
ordination, to  the  orders  of  his  superior  otlicer,  it  slioukl  be  (fuite  clear  that 
;-:ome  unusual  restraint  upon  his  liberty  of  personal  movement  exists  to 
justify  the  issue  of  the  writ;  otherwise  every  order  of  the  sui)erior  officer 
directing  the  movements  of  the  subordinate,  which  necessarily  to  some 
extent  controls  his  freedom  of  will,  may  be  held  to  be  a  restraint  of  his 
liberty,  and  the  party  so  ordered  may  seek  relief  from  obedience  by  means  of 
a  writ  of  habeas  corpus.  Something  more  than  moral  restraint  is  necessary 
to  make  a  case  for  habeas  corpus.  There  must  be  actual  confinement  or  the 
present  means  of  enforcing  it." 

Character  of  the  Restraint.— The  restraint  arising  in  the  military  ser- 
vice, v*-iiich  may  be  inquired  into  by  a  resort  to  the  habeas  corpus,  may 
consist  in  the  actual  arrest  or  confinement  of  an  officer  or  enlisted  man,  or 
in  the  confinement  of  a  citizen  by  the  military  authority.     As  the  contract 

decree  of  a  court  or  judge  thereof  ;  or  is  in  custody  in  violation  of  ibe  Couslitutiou  or  of 
ji  law  or  treaty  of  the  United  Stales  ;  or,  being  a  subject  or  citizen  of  a  foreign  state, 
and  domiciled  therein,  is  in  custody  for  an  act  done  or  omitted  under  any  alleged  right, 
title,  authority,  i>rivil.ge,  protection,  or  e.xemption  claimed  under  the  commission,  or 
or«ier,  or  sanction  of  any  foreign  state,  or  under  color  thereof,  the  validity  and  effect 
whereof  depend  upon  the  law  of  nations  ;  or  unless  it  is  necessary  to  l)ring  the  prisoner 
into  court  to  tesiify."  The  Act  of  March  27,  1868,  (15  Stat,  at  Large,  44,)  took  from 
the  Supreme  Courl'jurisdiction  to  review,  on  appeal,  the  decision  of  a  Circuit  Court  upon 
•A  writ  of  liabeas  corpus  ;  and  it  has  no  jurisdiciion  to  review  such  decisions  on  a  writ  of 
error.  It  may  still  issue  its  own  writ  of  habeas  corpus.  Ex  parte  Royall,  112  U.  S., 
181;  E.r  parte  Yerger,  8  Wall.,  103. 

The  Supreme  Court  may  issue  the  writ  in  virtue  of  its  original  jurisdiciion  only  in 
cases  affecting  ambassadors,  other  public  ministers,  and  consuls,  or  in  those  to  which  a 
Stale  is  a  party.  Ex  parte  Hung  Ilaug,  108  U.  S.,  552.  In  the  exercise  of  its  appellate 
jurisdiction  il'may  issue  the  writ  for  the  purpose  of  reviewing  the  judicial  decision  of 
some  inferior  olficer  or  court.  Ibid.,  558;  Ex  parte  Bollman  and  Swartwout.  4  Cr.,  75; 
Ex  parte  Watkins,  7  Pet.,  568;  Ex  parte  Wells,  18  How..  307.  328;  Ex  parte  Yerger.  8 
Wall.,  85;  Ex  parte  Laniie,  18  Wall.,  163;  Ex  parte  Parks,  93  U.  S.,  18;  Ex  parte  \U- 
ginia,  100  U.  S.,  339;  Ex  parte  Siebold,  100  U.  S.,  371.  Application  to  the  Supreme 
Court  for  the  issue  of  the  writ  must  show  that  the  case  is  within  its  jurisdiction.  Jn  re 
Milburn,  9  Peters.  704. 

A  justice  of  the  Supreme  Court  may  i.ssue  the  writ  in  any  part  of  the  I  idled  States 
where  he  happens  to  be,  and  may  make  it  returnable  to  himself,  or  may  refer  it  t<>  the 
court  fordeternunation.  Ex  part,  Clarke,  100  U.  S.,  399.  4t>3.  Tiie  writ  cannot  be  made 
to  perform  the  function  of  a  writ  of  error.  Ex  parte  Virginia,  100  U.  S.,  339  ;  Ex  parte 
Reed,  i/nd.,  13,  23.  The  writ  may  be  used  in  connection  with  the  writ  of  certidrari  to 
delernune  wiidher  tlie  court  below  acted  with  jurisdiction.  Ex  parte  Lange,  18  Wall., 
163;  Ex  parte  Virijinia.  100  U.  S..  339;  Ex  parU  Siebold,  ilnd.,  371.  This  section  does 
not  recpdre  liiat  the  law  therein  tuentioned  shall  be  by  express  Act  of  Congress.  ^  Any 
obliiratioii  fairly  and  properly  inferable  from  tlie  Constitution,  or  any  duty  of  a  United 
States  otbcer  to'  be  derived  from  the  generrd  scope  of  his  duties,  is  a  "  law  "  within  the 
meaning  of  the  statute.  Cuninngham  vs.  Neagle.  135  U.  S.,  1.  See.  also.  Ex paite  Dorr, 
3  How.",' 103;  Ex  parte  Barnes,  1  Sprasrue.  133;  Ex  parte  Bridges,  2  Woods,  428. 

1  Wales  vs.  Whitney,  114  U.  S.,  564,  571. 


316  MILITARY  LAW. 

of  enlistment  imposes  a  certain  restraint  upon  a  party  to  its  operation,  the 
legality  of  an  enlistment  may,  in  a  proper  case,  be  made  the  subject  of 
inquiry,  as  in  the  case  of  a  minor  who  has  enlisted  without  the  consent  of 
liis  parent  or  guardian. 

Procedure. — The  jurisdiction  of  the  several  Federal  courts  in  respect  to 
the  issue  of  the  writ  is  regulated  by  statute; '  tlieir  procedure,  however,  has 
not  been  made  the  subject  of  statutory  regulation,  and  the  practice  prevail- 
ing at  the  common  law  at  the  time  of  the  adoption  of  the  Constitution  is 
still  pursued.'  The  parties  to  the  writ  are  the  petitioner^  in  whose  behalf 
the  writ  has  issued,  and  the  respu7i(Jcnt,  the  officer  to  whom  the  writ  is 
addressed  and  by  whom  the  restraint  has  been  imposed. 

The  writ  may  be  granted  in  term  time  or  by  a  justice  or  judge  of  a 
Federal  court  having  jurisdiction  to  issue  the  writ,  in  vacation  or  at  any 
time,  and  may  be  issued  by  a  justice  of  the  Supreme  Court  in  any  part  of 
the  country,  wherever  he  may  be.^  The  usual  course  of  proceeding  is  for 
the  court,  on  the  application  of  the  prisoner  for  a  writ  of  habeas  corpus,  to 
issue  the  writ  and,  on  its  return,  to  lieiir  and  dispose  of  the  case;  but  where 
the  cause  of  imprisonment  is  fully  shown  by  the  petition,  the  court  may 
without  issuing  the  writ  consider  and  determine  whether,  upon  the  grounds 

'  See  Seclious  751,  752,  and  753,  Revised  Statutes.  AppliciUion  for  writ  of  habeas  corpus 
shall  be  made  to  the  court  or  justice  or  judge  authorized  to  issue  the  same,  by  comi)iaiut 
la  writing,  signed  by  the  person  for  whose  relief  it  is  intended,  setting  forth  the  facts  con- 
cerning the  detention  of  the  party  restrained,  in  whose  custody  he  is  detained,  and  by 
virtue  of  what  claim  or  authority,  if  known.  Tlie  facts  set  forth  in  the  coniplaiht  shall 
be  veritied  by  the  oath  of  the  person  making  the  application.  Section  754,  Revised  Stat- 
utes. 

The  court  or  justice  or  judge  to  whom  such  application  is  made  shall  forthwith 
award  a  writ  of  habeas  corpus,  unless  it  appears  from  the  petition  itself  that  the  party  is 
not  entitled  thereto.  Tlie  writ  shall  be  directed  to  the  person  in  whose  custody  the 
party  is  detained.     Sec.  755,  ibid. 

Any  per.son  to  whom  such  vvrit  is  directed  shall  make  due  return  thereof  within  three 
days  thereafter,  unless  the  party  be  detained  beyond  the  distance  of  twenty  miles  ;  and  if 
beyond  that  distance  and  not  "beyond  a  distance  of  a  hundred  miles,  within  ten  days; 
and  if  beyond  the  distance  of  a  hundred  miles,  within  twenty  days.     Sec.  756,  ibid. 

The  person  to  whom  the  writ  is  directed  shall  certify  to  the  court  or  justice  or  judge 
before  whom  it  is  returnable  the  true  cause  of  the  detention  of  such  party.  Sec.  757, 
ib'id. 

The  person  making  the  return  shall  at  the  same  time  bring  the  body  of  the  party 
before  the  judge  who  granted  the  writ.    Sec.  758,  ibid. 

When  tlie  writ  is  returned,  a  day  shall  beset  for  the  hearing  of  the  cause,  not  exceed- 
ing live  days  thereafter,  unless  the  party  petitioning  requests  a  longer  time.  Sec.  759, 
ibid. 

The  petitioner  or  the  party  imprisoned  or  restrained  may  deny  any  of  tlie  facts  set 
forth  in  the  return,  or  may  allege  any  other  facts  that  may  be  material  in  the  case. 
Said  denials  or  allegation  shall  be  under  oath.  The  return  and  all  suggestions  made 
against  it  may  be  amended,  by  leave  of  the  court  or  justice  or  judge,  before  or  after 
tile  same  are  tiled,  so  that  thereby  the  material  facts  may  be  ascertained.    Sec.  760,  ibid. 

The  court  or  ju.stice  or  judge  shall  proceed  in  a  summary  way  to  determine  the 
facts  of  the  case,  by  hearing  the  testimony  and  arguments,  and  thereupon  to  dispose  of 
the  party  as  law  and  justice  require.     Sec.  761,  ibid. 

Appeals  in  habeas  corpus  proceedings  are  regulated  by  Sections  763-766  of  the 
Revised  Statutes. 

'^  Hurd,  Hab.  Corp.,  214;  U.  S.  vs.  Clarke,  100  U.  S.,  403. 

'  Ibid. 


HABEAS  CORPUS.  317 

presented  in  the  petition,  the  prisoner  if  brought  before  the  court  would 
be  discharged.'  IJnder  the  requirements  of  this  section  the  writ,  though  a 
matter  of  right,  does  not  issue  as  a  matter  of  course,  and  may  be  refused  if, 
upon  the  showing  made  in  the  j)etition,  it  appears  that  the  petitioner  if 
brought  into  court  would  be  remanded.' 

Return. — Where  the  writ  issues  from  a  Federal  court  of  competent  juris- 
dictiiMi,  it  is  tl)e  duty  of  the  oHicer  holding  the  prisoner  in  custodv  to 
produce  the  body  of  the  prisoner,  that  is,  to  bring  him  into  the  presence  of 
the  court,  and  to  make  a  return  in  writing,  setting  forth  the  reasons  for 
the  restraint  or  detention  of  the  petitioner,  submitting  to  the  court  the 
whole  question  of  authority  and  discharge,  and  abiding  by  its  decision  and 
order  in  the  case.' 

'  Rx  parte  Milligan.  4  Wall.,  2. 

-  In  re  King,  .11  Fed.  Rep.  434;  In  re  Jordan,  49  ibid.,  238;  In  re  Haskell,  52  ibid., 
795.  Where  a  court-niarti;il  lia3  juiisdiction  of  the  person  and  of  the  subject-matter, 
and  is  coiupetenl  lo  pu.s.-i  the  sentence  under  which  the  prisoner  is  held,  its  proceedino-s 
cannot  be  collaterally  impeached,  and  a  writ  of  habeas  corpus  cannot  be  made  to  per- 
form the  function  of  a  writ  of  error.  Ex  parte  Reed.  100  U.  S.,  13,  23;  FJx  jHirte  Kear- 
ney, 7  Wheat.,  38;  Ex  parte  Watkins,  3  Pet.,  193;  Ex  parte  Milligan,  4  Wall.,  2;  Ex 
parte  Ma.sou,  105  U.  S..  09(i;  Ex  parte  Curtis,  106  U.  S  ,  371;  Exparte  Carrl,  ibid.  ')2\- 
Ex  parte  Bigelow,  113  U.  S..  328;  Smith  vs.  Whitney,  116  U.  S.,  167:  U.  S.  r«.  Grimley" 
137  U.  S.,  147;  Johnson  vs.  Sayre,  158  U.  S.,  109;  7«  ?r  Boyd,  49  F.  R.,48.  Whereamedi- 
cal  director  in  the  Navj-,  against  whom  charges  had  been  j)referred  and  in  whose  ca.^e  a 
general  court-martial  had  been  ordered,  was  placed  in  arrest  by  the  Secretary  of  the 
Navy,  and  notitied  to  conline  himself  to  the  limits  of  the  city  of  Washington,  /leld  that 
this  constituted  no  such  restraint  of  liberty  as  to  sustain  a  writ  of  habeas  corpus.  Wales 
vs.  Whitney,  114  U.  S.,  564.  Where  a  jierson  is  in  custody  under  process  from  a  State 
court  of  original  juri.sdiction  for  an  alleged  olfense  against  the  laws?  of  such  State,  and  il 
is  claimed  that  he  is  restrained  of  his  liberty  in  violation  of  the  Constilulitm  of  the 
United  States,  the  Circuit  Court  has  a  discretion  whether  it  will  tiischarge  him  upon 
habeas  corpus  in  advance  of  his  trial  in  the  court  in  wlii(h  he  is  indicted;  that  discretion, 
however,  to  be  subordinated  to  any  special  circumstances  requiring  immediate  action. 
When  the  State  court  has  lanally  acted  upon  the  case,  the  circuit  court  has  still  a  dis- 
cretion whether,  under  all  the  circumstances,  the  accused,  if  convicted,  shall  be  put  to 
his  writ  of  error  from  the  highest  court  of  the  State,  or  whether  il  will  proceed,  by  writ 
of  habeas  corpus,  summarily  to  determine  whether  the  prisoner  is  restiained  of  his  lib- 
erty in  violation  of  the  Constitution  of  the  United  States.  Ex  parte  Rovall.  117  U.  S.. 
241,  253;  Ex  parte  WtHkiuf.,  3  Pet.,  201;  Ex  parte  Bridges,  22  Woods.' 428;  Ex  parte 
Lange,  18  Wall.,  163;  Iti  re  King,  51  F.  R.,  434;  Ex  parte  Hanson,  28  F.  R.,  127,  131; 
ill  re  Jordan.  49  F.  R.,  238.  Where  a  United  States  marshal,  in  custody  for  an  act 
done  in  pur-uance  of  a  law  of  the  United  Stales,  is  brought  before  a  Federal  court  by 
habeas  corpus  and  discharged,  he  cannot  afterwards  be  tried  by  the  Stale  court.  Cun- 
nini:ham  m.  Is  eagle.  135  U.  S..  1. 

'  Dig.  J.  A.  Gen.,  435,  i>ar.  8.  In  a  ca.se  therefore  of  a  soldier  or  other  person  hekl 
in  military  custody,  or  by  military  authority,  in  which  a  writ  of  habeas  corpus  is  issued 
by  the  United  States  judiciary, — a  co-ordinate  branch  of  the  same  sovereignly  as  thai  bv 
which  the  party  is  restrained. — il  is  the  dut}'  of  the  officer  to  whom  the  writ  is 
addressed  to  make  thereto  a  full  return  of  the  facts  and  to  bring  into  court  the  body  of 
siicii  party,  submitting  to  the  court  the  whole  (piestion  of  authority  and  discharge,  and 
abi'ling  by  its  decision  and  onler  in  the  case.     Ibid. 

The  duty  of  an  officer  of  the  Army  ujion  whom  a  writ  of  habeas  corpus  is  served  is 
prescribed  in  the  following  paragraphs  of  the  Armv  Regulations  t)f  1895: 

Officers  will  make  respectful  returns  in  writing  to  all  writs  of  habeas  corpus 
served  on  them.  When  the  writ  is  issued  by  a  Slate  authority,  and  the  person  held  by 
the  Army  officer  is  a  civilian  who  has  been  apiu-ehended  under  a  warrant  of  attachment 
to  be  taken  before  a  court-martial  to  testify  as  a  witness,  the  officer  will  not  produce  the 
body,  but  will  by  his  return  set   forth  fully  the   authority  by  which  he  holds  the  per- 


318  MILITARY  LAW. 

Conflict  of  Jurisdiction  between  the  State  and  Federal  Courts. — It  has 
been  seen  that  the  jurisdiction  of  the  State  and  Federal  courts  iu  respect  to 
the  issue  of  the  writ  of  liabeas  corpus  is  strictly  defined  and  limited  by 
statute,  and  that  neither  court  may  issue  the  writ  in  a  case  properly  falling 
within  the  jurisdiction  of  the  other.  If  such  want  of  jurisdiction  is  apparent 
from  the  allegations  of  the  petition,  the  writ  should  be  denied.  If,  how- 
ever, the  petition  appears  upon  its  face  to  show  jurisdiction,  the  writ  issues; 
and  if  at  a  subsequent  stage  of  the  proceedings  the  want  of  jurisdiction 
appears,  tlie  case  should  be  dismissed  so  soon  as  that  fact  becomes  apparent,' 

Subject  to  the  paramount  authority  of  the  national  Government,  by  its 
own  tribunals,  to  inquire  into  the  legality  of  custody  of  prisoners  held  by 
the  United  States  courts  or  officers,  the  States  may  inquire  into  the  grounds 
on  which  any  person  in  their  respective  limits  is  restrained  of  his  liberty.* 
But  "  a  State  court  has  no  jurisdiction  by  habeas  corpus  to  release  a  prisoner 
held  by  order  of  Federal  court."  '  And  a  judicial  officer  of  a  State  cannot, 
by  means  of  a  writ  of  habeas  corpus,  take  and  discharge  a  person  held  by 
or  under  color  of  authority  of  the  United  States.  If  it  appear  npon  the 
return  to  a  writ  of  habeas  corpus  that  the  person  is  detained  under  color  of 
the  authority  of  the  United  States,  the  State  court  has  no  further  jurisdic- 
tion." 

Although  "  it  is  the  duty  of  the  marshal  or  other  person  holding  him  to 
make  known  by  a  proper  return  the  authority  under  which  he  detains  him, 
it  is  at  the  same  time  imperatively  his  duty  to  obey  the  process  oi  the 

son,  and  allege  that,  the  State  authority  is  without  jurisdiction  to  issue  the  writ  of  habeas 
corpus,  and  ask  to  have  the  same  dismissed.  He  will  also  exhibit  to  the  court  or  officer 
issuing  the  writ  of  habeas  corpus  the  warrant  of  attachment  and  tiie  subpoena  (and  the 
proof  of  the  service  of  the  subp(Ena)  on  which  the  warrant  of  atlachment  was  based,  and 
also  a  cerlitied  copy  of  the  order  convening  tlie  court-martial  before  which  he  hud  been 
commanded  to  take  the  person.     Par.  961),  A.  R.  1895. 

Should  a  writ  of  habeas  corpus  issued  by  a  Slate  court  or  judge  be  served  upon  an  Army 
officer  commanding  him  to  produce  an  enlisted  man  or  show  cause  for  his  detention, 
the  officer  will  decline  to  produce  in  court  the  body  of  the  person  named  in  the  writ, 
but  will  make  respectful  return  in  writing  to  the  effect  that  the  man  is  a  duly  enlisted 
soldier  of  the  United  States,  and  that  the  Supreme  Court  of  the  United  States  has  decided 
that  a  magistrate  or  court  of  a  State  has  no  jurisdiction  iu  such  a  case.      Ibid.,  par.  970. 

A  writ  of  habeas  corpus  issued  by  a  United  States  court  or  judge  will  be  promptly 
complied  with.  The  person  alleged  to  be  illegally  restrained  of  his  liberty  will  be  taken 
before  the  court  from  which  the  writ  has  issued,  and  a  return  made  setting  forth  the 
reasons  for  his  restraint.  The  officer  upon  whom  such  a  writ  is  .served  will  at  once 
report  the  fact  of  such  service  direct  to  the  Adjutant-General  of  the  Army  by  telegraph. 
Ibid.,  par.  971. 

The  form  of  return  to  the  writ  will  be  found  in  the  Appendix  ;  see,  also,  the  Manual 
for  Courts-martial,  pages  146-148. 

If  the  service  of  the  writ  be  prevented  by  military  force,  it  will  be  ordered  to  be  placed 
on  the  tiles  of  the  court,  to  be  served  when  practicable.  Ex  parte  Winder,  2  Clifford,  89. 

An  order  from  a  subordinate  in  the  War  Department  to  an  officer  not  to  obey  the  writ 
by  the  prod\iction  of  the  body  is  no  justification  to  the  officer.  Ex  parte  Field,  5  Blatch- 
ford  C.  C,  63. 

•  Ex  parte  Sifford,  5  Amer.  Law  Reg.  (O.  S.),  659. 
'Robb  vs  Connolly,  111  U.  S.,  624. 

*  Ableman  rs.  Booth.  21  How.,  506. 
'-  Tarble's  Case,  13  Wall.,  397. 


HABEAS  CORPUS.  319 

United  States,  to  hold  the  prisoner  in  custody  under  it,  and  to  refuse  obedi- 
ence to  the  mandate  or  process  of  any  otlier  government.  And  conse- 
quently it  is  his  duty  not  to  take  the  prisoner,  nor  suffer  him  to  be  taken, 
before  a  State  judge  or  court  upon  a  habeas  'corpus]  issued  under  State 
authority.  No  State  judge  or  court,  after  they  are  judicially  informed  that 
the  party  is  imprisoned  under  the  authority  of  the  United  States,  has  any 
riglit  to  interfere  with  him,  or  to  require  him  to  be  brought  before  them. 
And  if  the  authority  of  a  State,  in  the  form  of  a  judicial  process  or  other- 
wise, should  attempt  to  control  the  marshal  or  other  authorized  officer  or 
agent  of  the  United  States,  in  any  respect  in  the  custody  of  his  prisoner,  it 
■would  be  his  duty  to  resist  it,  and  to  call  to  his  aid  any  force  that  might  be 
necessary  to  maintain  the  authority  of  law  against  illegal  interference.  Xo 
judicial  process,  whatever  form  it  may  assume,  can  have  any  lawful  authoritv 
outside  of  the  limits  of  the  jurisdiction  of  the  court  or  judge  by  whom  it 
was  issued,  and  an  attcmi)t  to  enforce  it  beyond  these  boundaries  is  nothino' 
less  than  lawless  violence."  ' 

'  Ableinan  rs.  Booth,  I'l  How.,  506.  We  do  not  qucstioii  the  authority  of  the  Slate 
court  or  judge  who  is  autliorized  by  tlie  laws  of  the  State  to  issue  llie  writ  of  habeas 
corpus  to  issue  it  in  any  case  where  the  pail}'  is  imprisoned  within  its  territorial  limits, 
provided  it  does  not  appear,  when  the  application  is  made,  that  the  person  imprisoned  is 
in  custody  under  the  authority  of  the  United  States.  The  court  or  judge  has  a  right  to 
inquire  in  this  mode  of  proceeding  for  what  cause  and  by  what  autiiority  tiie  prisoner 
is  ciJiilined  within  the  territorial  limits  of  the  State  soven-igiU}'.  And  it  is  the  duty  of 
the  marshal  or  other  person  having  the  custody  of  the  jirisoner  to  make  known  to'the 
judge  or  court,  by  a  proper  return,  the  authority  b}'  which  he  holds  him  in  custody. 
*  *  *  But  after  the  return  is  made,  and  the  Slate  judge  or  court  judicially  apprised 
that  the  party  is  in  custody  under  the  authority  of  the  United  States,  they  can  proceed 
no  further.     Ibid. 

A  State  judge  has  no  juri-^diction  to  issue  a  writ  of  habeas  corpus  for  a  prisoner  in 
custody  of  an  otlicer  of  the  Uintt-d  States  if  the  fact  of  such  custody  is  known  to  him 
before  issuing  the  writ;  and  if  such  fact  appears  on  the  return  to  the  writ,  all  further 
proceedings  by  him  are  voii\.  And  if  the  United  States  officer  resist  the  enforcement  of 
the  State  writ,  and  is  imprisoned  therefor,  he  will  be  discharged  by  the  Federal  court. 
Ex  parte  Sitl\)rd,  5  Am.  Law  Reg.  (O.  S.),  059.  A  military  officer  of  the  United  States 
is  not  bound  to  produce  tlie  body  of  an  enlisted  soldier  in  answer  to  a  writ  of  liabeas 
corpus  issued  from  a  Slate  court  or  judge,  la  re  Neill,  8  Blatch.,  166.  Tlie  return  of  a 
military  officer  to  a  writ  of  habeas  corpus  need  not  be  on  oath.  In  re  Xeill,  8  Blatch.. 
165.  The  validity  of  the  enlistment  of  a  soldier  cannot  be  inciuired  into  by  a  State  court 
by  the  issue  of  a  writ  of  habeas  corpus,  and  an  officer  of  the  Army  may  properly  refuse 
to  disfharge  an  enlisted  man  in  his  command  upon  the  order  of  a  Slate  court.  In  re 
Farrand.  i  Abbot,  140,  147. 

Bui.  indeitendenily,  on  the  one  hand,  of  any  proclamation  or  act  of  the  President 
suspending  the  privilesre  of  the  writ,  or.  on  the  other  hand,  of  any  proclamation  revok- 
ing a  previous  suspension,  and  on  constitutional  grounds  alone,  held  that  no  court  or 
judge  of  any  State  could  in  any  instance  be  authorized  lo  discharge,  on  liabeas  corpus,  a 
person,  mililary  or  civil,  held  in  military  custody  by  the  authority  of  Ihe  United  States. 
And  hdd.  particularly,  in  regard  to  soldiers  arrested  or  contined  l)y  the  military  authori- 
ties under  a  charge  of  or  sentence  for  desertion,  that  their  discharge  upon  any  ground 
by  writ  of  habeas  corpus  was  wholly  beyond  the  jurisdiction  of  any  State  tribunal.  So 
held  in  regard  to  persons  arrested  l)y  a  provost-marshal  as  deserters  for  not  responding 
to  a  draft  in  time  of  war.  And  fiirihcr  hdd  (.January.  186*)t  that  no  Slate  court  could 
have  jurisdiclion,  on  a  proceeding  for  the  discliarge  by  writ  of  habeas  corpus  of  an 
enlisted  soUiier,  to  pass  upon  the  question  of  tiie  letralily  of  the  soldier's  enlistment,  or 
to  disi-harge  him  from  liis  contract  of  enlistment  on  Ihe  ground  of  its  invalidiiy  by  rea- 
son of  miuorily,  non-consent  of  parent,  or  other  cause;  the  authority  to  discharge  from 


320  MILITARY  LAW. 

Suspension  of  the  Privilege  of  the  Writ  of  Habeas  Corpus. — The  Consti- 
tution provides  that  "  the  privilege  of  the  writ  of  Imbeas  corpus  shall  not  be 
suspended  unless,  when  in  cases  of  rebellion  or  invasion,  the  public  safety 


the  restraint  and  obligiilion  of  the  ordinar}'  military  status  being  coTisidered  to  be  gov- 
erned bv  the  same  principle  as  that  to  discharge  from  an  arrest  or  confint  nient  under  a 
militarv  charge  or  sentence,  or  from  the  custody  of  a  U.  S.  marshal  under  civil  process 
of  the  L'niteirStates.*     Dig.  J.  A.  Gen.,  438,  par.  '■'>. 

And  held  that  a  State  court  was  not  authorized  to  discharge  on  habeas  corpus  a 
civilian  held  by  the  authority  of  the  United  States  as  a  convict  under  sentence  of  a  mili- 
tary commission.     Ibid.,  434,  par.  4. 

Where  a  writ  of  liabeas  corpus  issued  by  a  State  court  or  judge,  for  the  relief  of  a 
person  held  in  arrest,  continemeut,  or  under  enlistment  by  the  military  authorities  is 
served  upon  a  military  officer,  he  is  not  icquired  1o  comply  with  the  direction  of  the 
writ  to  produce  before  the  court  the  hod;/  of  the  person  so  held.  It  is  suflBcient  for  him' 
merely  to  make  return  showing  clearly  "that  such  person  is  held  by  the  authority  of  the 
United  States  as  a  deserter,  or  imder  a  contract  of  enlistment,  or  otherwise,  as  the  case 
may  be.f  The  State  court,  upon  being  thus  apprised,  will  properly  dismiss  the  writ. 
Ibid,   par.  5. 

Wliere— prior  to  the  decision  of  the  U.  S.  Supreme  Court  in  Tarble's  Case— a  State 
court,  having  issued  a  writ  of  habeas  corpus  in  a  case  of  a  military  prisoner,  attempted  to 
enforce  a  process  of  contempt  against  the  officer  in  charge,  who,  though  duly  making  a 
return  showing  that  the  party  was  detained  by  the  authority  of  the  United  States, 
refused  to  produce  his  body  in  comi—7ield  that  such  attempt  should  be  resisted  by  the 
officer,  who  should  be  supported  in  his  resistance  by  such  military  force  as  might  be 
necessary.  So  where  a  State  court,  after  such  a  return,  still  assumed  to  proceed  in  the 
case  and  to  order  the  discbarge  of  the  par  ly— here  a  soldier  in  arrest  as  a  deserter,— 7/<;M 
that  the  execution  of  such  order  should  'be  resisted  and  prevented  by  military  force. 
Ibid.,  435,  par.  6. 

■\Ylie,e— prior  to  the  decision  in  Tarble's  Case— an  officer  undergoing,  in  a  State  peni- 
lentiary,  a  sentence  duly  imposed  by  a  court-martial  was  discliarg(d  f n  m  his  imjirison- 
ment  by  a  State  court  and  was  at  large,  advised  that  he  be  forthwith  rearrested  and 
reconfined.  So  in  a  case  of  a  .soldier  discharged  from  his  enlistment  on  the  ground  of 
minority  by  a  State  court,  advised  that  he  be  arrested  by  the  military  authorities  and 
held  to  service.     Ibid.,  par.  7. 

But  in  a  case  of  a  soldier  or  other  persou  held  in  military  custody,  in  which  a  writ 
of  habeas  corpus  is  issued  by  the  United  States  judiciary— a  co-ordinate  branch  of  the 
same  sovereignty  as  that  by  which  the  party  is    restrained, — it  is  the  duty  of  the  officer 


*  Opposed  to  this  view  was  the  opinion  of  Ally.  Gen.  Stanbery  in  Gornilej  's  Case  (OctcVf^r,  ifCT).  12 
Opins   At-Gen    2.58     But  in  Decemlier,  1871.  ttie  ruling  of  the  Judge -Advocate  General  iii  this  class  of 
cases  was  sustained  by  the  United  States    Suprenie  Court  in  Tarble's  Case,  13  ■Wallace,  397.  in  which 
the  judgment  of  a  State  court  which  had  ordered  the  discharge,  on  habeas  corpus,  of  an  enlisted  sol- 
dier from  "  the  custody  of  a  recrnitini;  officer,"  i.e.,  from  the  obhgation  of  his  contract  of  enlistment, 
on  the  ground  that  he  had  enlisted  when  under  eighteen  years  of  age  and  without  his  father's  consent, 
was  reversed  as  an  unconstitutional  assumption   of  authority.    In  applying  to  the  case  the  principle 
laid  down  in  Ableman  vs.  Booth,  21  Howard,  506,  the  court,    by  Field,  J.,  observes  :    "  State  judges  and 
State  courts,  authorized  by  laws  of  their  States  to  issue    v  rits  of  habeas  corpus,  have  undoubtedly  a 
right  to  issue  the  writ  in  any  case  where  a  party  is  alleged  to  be  illegally  confined  within  their  limits, 
unless  it  appears  upon  his  application  that  he  is  confined    under  the  authority,  or  claim  and  color  of 
the  authority   of  the  United  States  by  an  officer  of  that  Government.     If   such  fact  appear  upon  the 
application    the  writ  should  tie  refused.     If  it  do  not  appear,   thf-  judge  or  court  issuing  the  writ  ))asa 
right  to  inquire  into  the  cause  of  imprisonment,  and  ascertain    t>y  what  authority  the  jierson   is  held 
within  the  limits  of  the  State:  and  it  is  the  duty  of  the  marshal   or  other  officer  having  custody  of  the 
prisoner  to  give   tiy  a  proper  return,  infonnatibn  in  this  respect.     His  return  should  be  si  fticient.  in  its 
detail  of  facts   to  show  distinctly  that  the  imprisonment  is  under  the  authority,  or  claim  and  color  of 
theaiithority   of  the  United  States,  and  to  exclude  the  suspicion    of   imposition  or  oppression  on  his 
part      And  the  process  or  oniers  under  which  the  prisoner  is  held  shr.uld  tie  produced  with  the  return 
and  submitted  to  in.spection.  in  order  that  the  couit  or  judge  issuing  the  writ  m.<iy  see  that  tie  prisoner 
is  held  by  the  officer  in   good   faith,  under  the  authority,  or  claim  and  color  of  the  authority,  of  the 
United  States,  and  not  under  the  mere  pretense  of  having  such  authority.    *     *     *    The  State  judge  or 
State  court  should  proceed  no  further  when  it  appears,  from  the  application  of  the  party  or  the  return 
made   that  the  prisoner  is  held  by  an  officer  of  the  United  States  under  what  in    truth  purports  to  be 
the  authority  of  the  United  State*  ;  that  is,  an  autliority  the  validity  of  wliich  is  to  be  determined  by 
the  Constitution  and  laws  of  the  United  States.     If  a  party  thus  held  lie  illegally  imprisoned,  it  is  for 
the   courts  or  judicial  offic^ers  of  the  United  States,  and  those  courts  or  officers  alone,  to  grant  )iim 
release  "'    This  decision  put  an  end  to  a  controversy  of  many  years'  standing,  and  swept  away  a  mass 
of  counter-rulings  by  the  State  courts,  the  majority  of  which  had  sustained  the  authority  of  the  Stat« 
judiciary  in  such  cases. 

+  See  citation  in  Tarble's  Case  in  note  *,  supra. 


HABEAS  CO  UP  US.  321 

may  require  t."  '  There  lias  been  great  difference  of  opinion  as  to  the 
interpretation  of  this  provision  of  the  Constitution.  By  some  it  has  been 
held  to  justify  the  proclamation  of  martial  law;  by  othercj  it  has  been  held 
that  the  grant  of  power  is  restricted  to  the  precise  contingency  set  forth  in 
the  Constitution.'  Tiiere  was  also  at  one  time  considerable  diversity  of 
view  as  to  the  particular  dei)artment  of  the  Federal  Government  wljich  was 
entrusted  with  the  exercise  of  the  power.'    That  the  clause  does  not  warrant 

to  whom  ihe  writ  is  iiddrussed  to  make  thereto  a  full  return  of  the  facts  and  to  bring 
into  court  the  b  >dy  of  such  party,  submiltin;^  to  the  court  the  whole  question  of  author- 
ity and  (ii-;charge.  and  abiding  by  its  decision  and  order  in  the  case.  Dig.  J.  A.  Gen., 
4^"),  par.  8. 

Concurrent  Jurisdiction. — Although  what  has  been  said  above  relates  to  conflicting 
jurisdiction,  a  case  may  arise  in  wliicli  both  Slate  and  Federal  courts  would  have  con- 
current juri-sdiclion  to  issue  the  writ  and  to  discharge  a  prisoner  from  custody.  Such  a 
case  would  arise  wliere  a  persou  is  restrained  of  his  liberty  under  some  State  process  in 
violation  of  a  law  of  the  United  Slates;  and  in  such  case  it  would  be  the  duty  of  a 
State  court  or  judge,  in  its  action  under  the  writ,  to  give  effect  to  the  law  of  the  United 
States.  For  "upon  the  State  courts,  equally  with  the  courts  of  the  Union,  rests  the 
obligation  to  guard,  enforce,  and  protect  every  right  granted  or  secured  by  the  Consti- 
tution of  the  United  States  and  the  laws  made  in  pursuance  thereof  wlienever  those 
rights  are  involved  in  any  suit  or  proceeding  before  them  ;  for  the  judges  of  the  State 
courts  are  required  to  take  an  oatii  to  support  that  Constiliuion,  and  they  aie  hound  by 
it  and  the  laws  of  the  United  States  made  in  pursuance  thereof,  and  all  ireaties  made 
under  their  authority,  as  the  supreme  law  of  tlie  land."  liobb  vs.  Connolly,  111  U.  S., 
624,  687.  "  Subject,  then,  to  the  exclusive  and  paramount  authority  of  the  national 
Government,  by  its  own  judicial  tribimals,  to  determine  whether  persons  held  in  cus- 
tody l)y  authority  of  the  courts  of  the  United  States,  or  by  the  commi.ssiouers  of  such 
courts,  or  by  otlicers  of  the  geneial  govern uicnt  acting  under  its  laws,  are  so  held  in  con- 
formity with  law,  tlie  States  have  the  right  by  their  own  courts  or  by  the  judges  thereof 
to  inquire  into  the  grounds  upon  which  any  person,  within  their  respective  territorial 
limits  is  restrained  of  his  liberty,  and  to  discharge  him  if  it  be  ascertained  tliat  such 
restraint  is  illegal;  and  this  notwithstanding  sucli  illegality  may  arise  from  a  violation  of 
the  Constitution  or  laws  of  the  United  States."     Ibid.,  639. 

'  Constitution  of  the  U.  S.,     Art.  I,  Sec.  9,  Clause  3. 

'  Pomeroy.  Const.  Law,  jj  707. 

'  In  a  proclamation  of  May  10,  1S61,  the  President  authorized  the  commander  of  the 
U.  S.  forces  on  the  Florida  coast  if  he  found  it  necessary,  "  to  suspend  there  the  writ 
of  habeas  corpus."  By  G.  O.  104,  War  Department,  Aug.  13,  1862,  the  President  sus- 
pended the  privilege  of  the  writ  of  liai)eas  corpus  in  cases  of  persons  liable  to  draft  who 
should  attempt  to  depart  to  a  foreign  country,  or  should  absent  themselves  from  the 
State  or  county  of  their  residence,  in  anticipation  of  a  draft  to  which  they  would  be 
subject.  By  a  proclamation  of  September  24,  1862,  the  President  declared  the  privilege 
of  tlie  writ  suspended  in  respect  to  all  persons  arrested  or  imprisoned  "during  the 
rebellion  by  any  military  authority,"  or  under  "  sentence  of  any  court-martial  or  inili- 
tary  commission."  These  proclamations  and  orders  were  all  based  iqion  the  theory  that 
untler  Art.  1,  Sec.  9.  par.  2,  of  the  Constitution,  or  otherwise,  the  President  alone,  in 
the  absence  of  any  authority  from  Congress,  was  empowered  to  suspend  the  privilege 
of  the  writ.     D  g.  J.  A.  Gen.,  431,  jiar.  1. 

But  in  the  following  year,  by  the  Act  of  Congress  of  March  3.  1863.  (12  Stat,  at  Large. 
75.5,)  it  was  provided  "that  during  the  present  rebellion  the  President  of  the  I'niteil 
States,  whenever  in  his  judgmcMit  the  puiilic  safety  may  recpiire  it,  is  authorized  to  sus- 
ju-nd  the  jirivilege  of  the  writ  of  hal)e;is  corinis  in  any  case  throughout  the  United  States 
or  any  part  thereof  ;"  Congress,  by  thus  a.sserting  the  right  in  il.self  to  authorize  the  sus- 
pension, iuqilying  that,  in  its  opinion,  the  power  to  suspend  did  not  reside  in  the 
President.*     Ibid. 


•  The (juestion  whether  the  President  was  aiittinrizeil.  in  liis  own  disiTeticin  niui  iniieiiendeiiilv  of 
the  sanction  of  Conerress.  to  exercise  this  power  was  iiiiicli  (iisciissed  early  in  the  late  war.  Thf>  fnlle.st 
arKtiment  in  favor  of  the  existence  of  ttie  power  in  the  President  is  contained  in  Mr.  Horary  Hiunev's 
treatise  on  "  The  Privilege  of  the  Writ  of  Halieas  t'orpus  under  the  Constitution."  .\n<i  see.  also.  Ex 
partf  Field  ^  RIatch..  (Vi;  Opinionof  Att.-tJen.  Bates  in  in  (>pins..  74.  The  weight  of  judicial  authority, 
however,  was  the  other  wav.  Sfe  /?.r  ;)fn7»"  >terrvniim.  Tanev. '.M'i;  McC'all  r.v.  McDowell.  1  Abbott  U. 
S.  R.,  •i\'i:  (}riffin  rs.  Wilcox,  27  Ind.,  Mi,  In  re  Kemp,  16  Wise,  359;  In  re  Oliver,  17  id.,  6bl ;  In  re 
Murphy,  Woolworth,  141. 


322  MILITARY  LAW. 

the  proclamation  of  martial  law  has  already  been  shown,  since  martial  law 
results,  not  from  legislation  or  from  executive  or  judicial  action,  but  from 
imperative  necessity.  It  is  also  well  settled  that  Congress  alone  has  power 
to  exercise  the  authority  conferred  upon  the  Federal  Government  by  the 
clause  above  cited.' 

How  Suspended;  Effects. — It  will  be  observed  that  the  Constitution 
confers  authority  upon  Congress  (in  a  certain  condition  of  emergency,  aris- 
ing from  rebellion  or  invasion)  to  suspend,  not  the  writ  itself,  but  the  privi- 
lege of  the  writ;  that  is,  to  deny  to  an  arrested  person  the  remedy  afforded 
by  the  writ  in  the  class  or  classes  of  cases  specified  in  the  suspending  statute. 
The  writ  issues  in  the  usual  form,  and  return  is  made  in  the  usual  manner. 
If  the  return  shows  the  case  to  fall  within  the  statute  of  suspension,  release 
is  denied  and  the  prisoner  is  remanded  to  custody.  A  suspension  of  the 
privilege  of  the  writ  is  thus  seen  to  deprive  an  arrested  person  of  the  right 
to  secure  his  release  by  a  resort  to  the  writ  of  habeas  corpus.  It  confers  no 
power  to  arrest,  however,  nor  does  it  validate  an  arrest  illegally  made.'^ 

'  The  suspension  of  the  ■w'rit  does  not  in  the  least  affect  the  authority  over  arrests  ; 
the  power  to  suspend  does  not  enable  Congress  to  allow,  or  the  Executive  to  make, 
arrests  without  legal  cause,  or  iu  an  arbitrary  or  irregular  manner  ;  Ijut  merely  enables 
the  Governinent  to  detain  a  prisoner,  arrested  f(^r  good  cause,  for  an  imlefinite  time  with- 
out trial  or  bail.  Suspending  the  writ  does  not  legalize  seizures  otherwise  arbitrary,  nor 
give  any  greater  authority  to  the  Executive  than  that  of  detaining  suspected  persons  in 
custody  to  whom  it  would  else  be  obliged  to  bring  to  a  speedy  trial  or  release  on  bail. 
Pomenn'  Const.  Law,  i^  708  ;  Ex  jxirte  Milligan,  4  Wallace,  3,  llo.  Under  the  authority 
conferred  by  the  Constitution,  the  privilege  of  the  writ  has  once  been  suspended  by 
Congress.  The  Act  of  March  3,  1863,*  empowered  the  President  to  suspend  the  privi- 
lege of  the  writ  in  certain  cases.  The  same  enactment  required  the  Secretaries  of -State 
and  of  War  to  furnish  the  judges  of  the  .several  Circuit  and  District  Courts  with  lists  of 
the  names  of  the  persons  arresietl  in  their  res[)ecti\^e  districts.  If  the  grand  juries  met 
and  adjourned  without  finding  bills  against  such  persons,  the  judges  were  to  release 
them  on  their  own  recognizances.  If  within  twenty  days  after  the  passage  of  the  act, 
or  within  twenty  days  after  their  arrest,  lists  were  not  furnished,  and  the  arrested  per- 
sons were  not  in(iicted  by  the  grand  juiy,  the  persons  so  held  in  arrest  might  petition  the 
court,  alleging  under  oath  the  facts  ;  and  the  judges  were  required  to  examine  into  the 
cause  of  holding  and,  if  it  were  found  to  be  unlawful,  to  release  them  from  custodj'. 

-  On  September  15,  18G3,  and  pursuant  to  the  Act  of  March,  1863,  above  cited,  the 
President  issued  a  proclamation  suspending  the  privilege  of  the  writ  generally,  and 
"throughout  the  United  States"  in  all  cases  "where,  by  the  authority  of  the  Presi- 
dent of  the  United  States,  military,  naval,  and  civil  ofUcersof  the  United  States,  or  any  of 
them,  hold  per.sons  under  their  command  or  in  their  custody  either  as  prisoners  of  war, 
spies,  or  aiders  or  abettors  of  the  enemy,  or  oftict  r.«,  soldiers,  or  seamen  enrolled  or  drafted 
or  mustered  or  erdisted  in  or  belonging  to  the  Laid  or  naval  forcesof  the  United  States, 
or  as  deserters  therefrom,  or  othervvise  amenable  to  military  law,  or  the  Rules  and  Articles 
of  War.  or  the  rules  or  regulations  prescribed  for  the  military  or  naval  services  l)y  authority 
of  the  President  of  the  United  States,  or  for  resisting  a  draft,  or  for  any  other  offense 
against  the  military  or  naval  service."  [n  a  case  in  whicli,  by  the  operation  of  this  last 
proclamation,  the  writ  was  .suspended,  held  that  any  judge  or  court,  whether  of  the 
United  States  or  of  a  State,  would  be  required  to  disiniss  tlie  writ,  on  being  advised  (in 
the  manner  and  form  indicated  in  the  Act  of  March  3,  1863,  s.  1)  that  the  ])arty  sought 
to  be  relieved  was  "  detained  as  a  prisoner  under  the  authority  of  the  President,"  Dig. 
J.  A.  Gen.,  431.  par.   1. 

By  a  proclamation  of  December  1,  iJ^Go,  the  President  "  revoked  and  annulled  "  the 
suspension  (by  proclamation  of  Sept.  15.  1863)  of  the  privilege  of  the  writ  in  certain 
States,  including  New  York.  IlHd  that  such  revocation  did  not  oi)erate  to  authorize 
the  discharge,  by  a  court  of  this  State,  <>f  a  prisoner  detained  in  military  custody  under 
color  of  the  authority  of  the  United  States.     Ibid.,  432,  par.  2. 

*  12  Stat,  at  Large,  755. 


CHAPTER  XVIII. 

THE  EMPLOYMENT  OF  MILITARY  FORCE. 

The  War  Powers  of  the  United  States. — The  power  to  raise  and  support 
armies,'  to  nuiintaiii  anavy,^  and  to  declare  war'  isvested  by  the  Constitution 
in  tlie  Congress  of  the  United  States;  the  power  to  command  tlie  estahlish- 
ments  so  created,  and  to  carry  on  military  oj^erations  in  jjursuance  of  such 
declaration  is  vested  by  that  instrument  '  in  the  President  as  the  constitu- 
tional commander-in-chief.  It  is  also  Avithin  the  power  of  the  Executive  to 
recognize  the  existence  of  hostilities  in  advance  of  such  formal  declaration, 
as  in  the  case  of  invasion  or  insurrection;  and  he  may  resort  to  such  meas- 
ures, with  a  view  to  resist  or  suppress  such  invasion  or  insurrection,  as  may 
seem  to  him  best  calculated  to  accomplish  that  purpose.^  In  the  exercise  of 
military  connnaud  and  in  the  conduct  of  military  ojierations  the  President 
is  not  subject  to  legislative  or  judicial  control.' 

Powers  of  the  President  as  Commander-in-Chief. — As  commander-in- 
chief,  the  President  is  authorized  to  direct  the  movements  of  the  land  and 
naval  forces  placed  by  law  at  his  command,  and  to  employ  them  in  the 
manner  he  may  deem  most  effectual  to  harass  and  conquer  and  subdue  the 
enemy,  lie  may  invade  the  hostile  country  and  subject  it  to  the  sovereignty 
and  authority  of  the  United  States.  But  his  conquests  do  not  enlarge  the 
boundaries  of  this  Union,  nor  extend  the  operations  of  our  institutions  and 
laws  beyond  the  limits  before  assigned  to  them  b}'  the  legislative  power.* 
The  power  of  command  and  control  reserved  by  the  crown  was  placed  by 
the  Constitution  in  the  hands  of  the  President.' 

'  Constitution  of  tlie  United  States,  Article  I,  Sec.  8,  Clause  12. 

»  Ibid  ,  Article  I.  Sec.  8.  Cluiise  18. 

'  Ihid..  Article  I.  Sec.  8,  ClaiKsi-  11.  War  may  be  "declared"  by  a  formal  recog- 
nition of  its  existence  as  well  as  by  a  declaration  in  advance.  Act  of  June  18,  1813 
(2  Stat,  at  Large,  755);  Talbot  vs.  Seaman,  1  Crauch,  28  ;  Bas  vs.  Tinge}',  4  Dall.,  37  ; 
Talbot  vs.  Jansen,  3  Dall  .  1:53  :  Tlie  Eliza,  4  Dall.,  37 ;  The  Prize  Cases,  2  Black,  635  ; 
Tyler  r,-!    Defrees,  11  Wall..  331 

••  Coiistitulion.  Article  II.  Sec.  2. 

5  The  Prize  Cases,  2  Black,  (i:!5,  668 

•  Mississippi  r.v.  Johnson,  4  Wall..  475  ;  State  vs.  Kcnnon,  7  Ohio  St.,  546. 

'  Fleming  rs.  Page,  9  How.,  003,  615. 

8  Street  vs.  U.  S.,  24  Cl.  Cls.,  230;  25  ibid.,  515;  113  U.  S.,  299.  The  following 
sections  of  the  Revised  Statutes  provide  for  calling  forth  the  militia  in  case  of  invasion 
or  rebellion:  whenever  the  United  States  are  invaded,  or  are  in  imminent  danger  of 
invasion  from  any  foreign  nation  or  Indian  tribe,  or  of  rebellion  against  the  authority  of 

323 


324  MILITARY  LAW. 

Subordination  of  the  Military  to  the  Civil  Power. — In  the  preparation 
and  adoption  of  the  State  and  Federal  Constitutions,  it  was  the  purpose  of 
the  people  to  secure  that  maintenance  of  civil  order,  based  upon  the  recogni- 
tion of  individual  rights,  which  is  known  to  the  common  law  as  "  the 
jireservation  of  the  peace."  This  is  accomplished  by  the  enactment  and 
enforcement  of  such  laws,  both  civil  and  criminal,  as  seemed  to  those  who 
have  enacted  them  best  suited  to  accomplish  that  purpose.  The  agencies 
provided  for  the  enforcement  of  those  laws  are  exclusively  civil  in  character, 
and  such  military  institutions,  in  the  nature  of  militia  forces  or  permanent 
estal)lishnients,  as  have  received  constitutional  recognition  are  maintained 
under  such  limitations  and  restrictions  as  are  calculated  to  insure  their  strict 
subordination  to  the  civil  power. 

Such  military  authority  as  is  vested  in  the  President  or  in  the  Governors 
of  the  several  States  may  be  exercised  (1)  in  the  support  of  the  proper 
civil  authorities  in  the  execution  of  the  laws,  and  (2)  in  the  maintenance  of 
order  in  districts  in  which,  by  reason  of  insurrection  or  rebellion,  the  civil 
authority  has  been  wholly  or  partially  displaced  and  is  for  the  time  unable 
to  exerei>;e  its  functions.' 

The  Execution  of  the  Laws. — The  power  of  the  President  to  employ  the 
military  forces  of  the  United  States  in  the  conduct  of  public  war,  as  in 
resistance  to  invasion,  or  in  the  suppression  of  insurrection  or  rebellion,  has 
already  been  described.  The  Constitution  also  vests  in  him  the  duty  of 
executing  the  laws  of  the  Union. ^     While  the  responsibility  for  their  correct 

the  Governmeut  of  the  Uiiiled  States,  it  shall  be  lawful  for  the  President  to  cnll  forth 
such  number  of  the  militia  of  the  State  or  States  most  convenient  to  the  place  of 
(lau<^er,  or  scene  of  action,  as  he  may  deem  necessary  to  repel  such  invasion  or  to  sup- 
press such  rebellion,  and  to  issue  his  orders  for  that  purpose  to  such  officers  of  the 
militia  us  he  may  think  proper.     Section  1642,  Rev.  Stat. 

When  the  militia  of  more  than  one  State  is  called  into  the  actual  service  of  the 
United  States  by  the  President,  he  sliall  apportion  them  among  such  Slates  according  to 
representative  population.     Sec.  1043,   ibid. 

The  militia,  when  called  into  the  actual  service  of  the  United  States  for  the  suppres- 
sion of  rebellion  against  and  resistance  to  the  laws  of  the  United  States,  .shall  be  subject 
to  the  same  Rules  and  Articles  of  War  as  the  regular  troops  of  the  United  States.  Sec. 
1644,  bid. 

'  Luther  rs.  Borden,  7  How.,  1. 

The  Act  of  February  28.  1795,  (1  Stat.  L.,  424.)  authorizing  the  President,  under 
certain  circumstances,  to  call  out  the  militia  is  constitutiomd,  and  tlie  President  is  the 
final  judge  of  the  emergency  justifying  such  a  call.  Martin  m.  Mott,  12  Wheat.,  19. 
By  this  Act  the  power  of  deciding  whether  the  exigency  had  arisen  upon  which  the 
Government  of  the  Uinted  States  is  bound  to  interfere  is  given  to  the  President.  He  is 
to  act  upon  the  application  of  the  legislature  or  of  the  Executive,  and  consequently  he 
must  determine  what  body  of  men  constitute  the  legislature,  and  who  is  the  governor, 
before  he  can  act.  The  fact  that  bolii  parties  claim  the  riuht  to  the  government  cannot 
alter  the  case,  for  both  cannot  be  entilh^d  to  it.  If  there  is  an  armed  conflict,  like  the 
one  of  which  we  are  speaking,  it  is  a  ca.se  of  domestic  violence,  and  one  of  the  parties 
must  be  in  insurrection  against  the  lawful  government.  And  the  President  must  of 
necessity  decide  which  is  the  government  and  which  party  is  unlawfully  arrayed 
against  it  before  he  c;in  perform  the  duty  imposed  upon  him  by  the  Act  of  Congress. 
Luther  vs.  Borden,  7  How.,  1. 

*  Constitution,  Art.  II,  Section  1. 


THK  EMPLOYMENT  OF  MTUTARY  FORCE.  325 

execution  rests  upon  tlie  President,  as  the  liead  of  tlit*  executive  branch  of 
the  Government,  his  duty  in  this  regard  is  performed  through  agencies, 
called  Executive  Departments,  which  are  placed  at  his  disi)0sal  by  law.  The 
hea<ls  of  these  departments  are  the  constitutional  advisers  of  the  President; 
they  are  known  severally  as  cabinet  officers  and  constitute,  collectively,  tlie 
cabinet  or  constitutional  ministry.  Each  of  these  departments  is  composed 
of  agents  created  by  law,  called  public  officers,  who  are  entrusted  with  the 
sped  tic  execution  oi  the  laws  of  the  United  States.  As  has  been  seen,  these 
agencies,  save  in  the  War  and  Xavy  I)e])artmeuts,  are  exclusively  civil  in 
character  and  are  sutticient  in  ordinary  times  to  the  adequate  enforcement 
of  the  enactments  of  Congress.  At  times,  however,  on  account  of  civil 
disorder  or  by  reason  of  opposition  to  the  enforcement  of  particular  statutes, 
the  civil  agencies  above  described  are  unable  to  enforce  tlie  laws,  and  in  such 
cases  Congress  has,  by  appropriate  legislation,  empowered  the  President  to 
employ  the  land  and  naval  forces  of  the  United  .States  in  support  of  the  exe- 
cution of  the  laws.'  Such  statutory  authority  exists  in  the  following  cases: 
To  Execute  the  Laws  of  the  ITnion.' — The  Federal  Government  "  has 
the  right  to  use  physical  force,  in  any  jiart  of  the  United  States,  to  compel 
obedience  to  its  laws,  and  to  carry  into  effect  the  powers  conferred  upon  it 
by  the  Constitution."  '  The  entire  strength  of  the  nation  may  be  used  to 
enforce,  in  any  part  of  the  land,  the  full  and  free  exercise  of  all  national 
powers  and  the  security  of  all  rights  entrusted  by  the  Constitution  to  its 
care.  The  strong  arm  of  the  national  Government  may  be  put  forth  to 
brush  away  all  obstructions  to  the  freedom  of  interstate  commerce  or  the 
transportation  of  the  mails.  If  the  emergency  arise,  the  Army  of  the  nation 
and  all  its  militia  are  at  the  service  of  the  nation  to  compel  obedience  to  its 
laws.' 


'  Constitution.  Art.  I.  Sec.  8.  Clause,  15;  Sections  1642-1644  and  5297-5300,  Rev.  S!at. 

*  Er  parte  Siebold.  100  U.  S..  371,  395. 

»  In  re  Debs.  1.58  U.  S..  564,  583:  In  re  Neagle.  185  U.  S.,  1;  Ex  parte  SieboUl.  100 
U.  S.,  371.  395;  U.  S.  vs.  Kirby,  7  Wall..  482.  The  power  to  enforce  its  laws  and  to 
execute  its  functions  in  all  places  does  not  derogate  from  tlie  power  of  the  State  to  execute 
its  laws  at  the  same  time  and  in  the  same  places.  The  one  does  not  exclude  the  other 
except  where  both  cannot  be  executed  at  the  same  time.  In  that  ca-e  the  words  'of  the 
Constitution  itself  siiow  which  is  to^'ield  ;  "  this  Constitution  and  the  laws  of  the  United 
States  which  ehall  be  made  in  pursuance  thereof  .  .  .  shall  be  the  >u:>reme  law  of  the 
land." 

Although  no  State  could  establish  and  maintain  a  permanent  military  government, 
yet  it  may  u?e  its  military  jiower  to  ]>iit  down  .nn  armed  insurrection  too  strong  to  be 
ci>nlrolled  by  the  civil  authority.  Tiie  State  must  determine  for  itself  what  degree  of 
force  the  crisis  demands.  Luther  vx.  Borden.  7  How.,  1.  See.  also.  16  Opin.  Atl.-Gen., 
163. 

The  national  Government  has  the  right  to  use  physical  force  in  any  part  of  tiie 
United  States  to  compel  obedience  to  its  laws,  and  to  carry  into  execution  tiie  powers 
conferred  upon  it  by  the  Consiimtion.  "  We  hold  it  to  be  an  incontrovertible  principle 
that  the  Government  of  the  I'nited  States  may  by  means  of  pliysical  force,  i-xercised 
through  its  offlciiil  .agents,  execute  on  every  foot  of  Americmi  soil  tlic  powers  and  fiin<'- 
tions  thnt  belong  to  il  "  Kx  parte  Siel)ol"d.  HU)  U.  S.,  371.  395;  U.  S.  rs.  Neairle.  13.1 
U.  S..  1.  «0;  U/gan  »\<.  U.  S..  144  U.  S.,  26:'.,  294. 


326  MILITARY  LAW. 

Unlawful  Obstructions,  Assemblages,  Combinations,  etc. — Section  5298 
of  the  Revised  Statutes  provides  that  "  whenever,  by  reason  of  unlawful 
obstructions,  combinations,  or  assembhiges  of  persons,  or  rebellion  against 
the  authority  of  the  Government  of  the  I'nited  States,  it  shall  become 
impracticable,  in  the  judgment  of  the  President,  to  enforce,  by  the  ordinary 
course  of  judicial  proceedings,  the  laws  of  the  United  States  witliin  any 
State  or  Territory,  it  shall  be  lawful  for  the  President  to  call  forth  the 
militia  of  any  or  all  the  States,  and  to  employ  such  parts  of  the  land  and 
naval  forces  of  the  United  States  as  he  may  deem  necessary  to  enforce  the 
faithful  execution  of  the  laws  of  the  United  States,  or  to  suppress  such 
rebellion,  in  whatever  State  or  Territory  thereof  the  laws  of  the  United 
States  may  be  forcibly  opposed,  or  the  execution  thereof  forcibly  ob- 
structed." ' 

The  important  power  conferred  by  this  statute  is  in  its  nature  a  measure 
of  precaution  or  prevention,  and  a  resort  to  the  authority  thus  conferred  is 
calculated  in  a  proper  case  to  prevent  disaffection  or  civil  disorder  from 
ripening  into  an  insurrection  or  rebellion  of  such  formidable  proportions  as 
to  constitute  a  state  of  public  war.  The  statute  assumes  that  the  laws  are 
being  efficiently  executed  whenever  there  is  no  obstruction  to  their  enforce- 
ment which  cannot  be  overcome  by  a  resort  to  the  ordinary  agencies  provided 
for  that  purpose,  and  the  emergency  contemplated  in  the  statute  exists 
whenever  iii  the  judgment  of  the  President  it  becomes  impracticable  to 
enforce  the  laws  of  the  United  States  by  a  resort  to  the  agencies  thus  pro- 
vided. Where,  therefore,  such  enforcement  has  in  his  judgment  become 
impracticable,  a  case  may  be  said  to  have  arisen  under  the  statute,  and  the 
President  may  employ  the  public  armed  forces,  incliuliug  the  militia  of  the 
several  States,  in  removing  or  overcoming  such  forcible  obstruction  to  the 
operation  and  enforcement  of  the  laws. 

Proclamation  to  Insurgents. — As  a  condition  precedent  to  the  employ- 
ment of  military  force  under  the  statute  above  cited,  the   President  is 


'  Sec  5298  Kev  Rfs.  AiUliority  similar  in  kind  but  more  extensive  in  its  scope  is 
conferred  by' Sec.  8  of  the  Act  of  April  20.  1871,  (17  Stut.  at  Large,  14,)  which  is 
enil)odied  in"  Sec.  5299,  Kev.  Sts.,  wliieh  provides  thiit,  "wlienever  insurrection,  donustic 
violence,  unlawful  combinations,  or  conspir.icies  in  any  State  so  obstructs  or  hinders  the 
execution  of  the  laws  tliereof  and  of  the  United  States  as  to  deprive  any  iiorlion  or 
class  of  the  people  of  such  Stale  of  any  of  the  rights,  privileges,  or  immunUies,  or  pro- 
tection, named  in  the  Constitution  and  secured  by  the  laws  for  the  proteclion  of  such 
rights,  privileges,  or  immunities,  and  liie  constituted  authorities  of  such  Stale  are  unable 
to  protect  orlfrom  any  cau.se  fail  in  or  refuse  protection  of  the  people  in  such  rights, 
such  facts  shall  be  deemed  a  denial  bv  such  Stale  of  the  eciual  iirotection  of  tlie  laws  to 
which  thev  are  entitled  under  the  Constitution  of  the  United  States  ;  and  in  all  such 
cases,  or  whenever  any  such  insurrection,  violence,  unlawful  combination  or  conspiracy 
opposes  or  obstructs  the  laws  of  the  United  States,  or  the  due  execution  thereof,  or 
impedes  or  obstructs  the  due  course  of  iuslice  under  tlie  same,  it  shall  be  lawful  for  the 
President,  and  it  shall  be  his  duty,  to  take  such  nu'asures,  by  the  employment  of  the 
militia  or  tlie  land  and  naval  forces  of  the  United  States,  or  of  either,  or  by  other  means, 
as  he  may  deem  necessary,  for  the  suppression  of  such  insurrectiou,  domestic  violence, 
or  combinations." 


THE  EMPLOYMENT  OF  MILITARY  FORCE.  327 

required  forthwith,  hy  proclamation,  *'  to  commanfl  the  insurgents  to  dis- 
perse and  retire  peaceably  to  their  respective  abodes,  witliin  a  limited 
time."  '  The  form  and  contents  of  such  ])roclanuitions  have  already  been 
described;'  it  is  essential,  however,  that  such  instruments  shall  contain  a 
notitication  to  the  insurgents  to  disperse  and  retire  to  their  homes  within  a 
limited  time,  which  must  be  si)eciiically  set  forth,  both  as  to  its  commence- 
ment and  duration,  in  the  boily  of  the  proclamation/ 

Employment  of  Force  in  Support  of  the  Government  of  a  State. — The 
Constitution  contains  the  re([uirement  that  "  the  United  .States  shall 
guarantee  to  every  State  in  this  l7nion  a  rejiublican  form  of  government."  ' 
It  also  imposes  upon  the  Federal  Government  the  duty,  in  a  certain  case,  of 
supporting  the  lawful  Government  of  a  State  in  the  exercise  of  its  constitu- 
tional functions.  The  several  States  of  the  Union  are  regarded  by  the 
Constitution  as  sovereign  States,  save  as  to  those  powers  which  they  are  for- 
bidden to  exercise,  or  which  are  expressly  vested  in  the  United  States  by  the 
terms  of  that  instrument.  Insurrection  may  therefore  exist  in  a  State,  or 
the  enforcement  of  its  laws  may  be  opposed  or  prevented  by  the  existence  of 
unlawful  combinations;  and  the  Government  of  such  State  may  suppress  such 
insurrection  or  overcome  such  opposition  by  a  resort  to  any  means  within 
its  power.  AVith  this  exercise  of  i)0wer  on  the  part  of  a  State  of  the  Union 
the  Federal  Government  as  such  has  nothing  to  do.  It  is  only  when  the 
resistance  encountered  is  so  formidable  in  character,  or  great  in  amount,  as 
to  make  the  task  of  suppression  impossible  that  the  State  in  which  it  exists 
may  call  upon  the  United  States  to  interpose.* 

'  Sec.  5300,  Rev.  Sts 

-  See  the  chapter  entitled  ^Iautial  Law,  ante. 

*  Under  the  statute  above  cited  the  time,  wiiicli  is  by  the  terms  of  tlie  enaclmeiit 
re<iuircd  to  be  limited,  is  in  respect  to  its  duration  entirely  within  tiie  discretion  of  the 
President,  and  would  be  determined  in  a  particular  case  by  the  emerirency  of  tlie  occa- 
sion, and  the  necessity  for  prompt  action  to  vindicate  the  supremacy  of  the  law  and 
ensuri-  the  restoration  of  order. 

Riot  Acts. — 111  accordan(;e  with  the  law  of  most  of  the  States,  what  is  called  the  Riot 
Act  is  recjuirod  to  i)e  read  to  iiisuiirents  or  rioters  before  any  extraordinary  force,  either 
civil  or  military,  can  be  employed  against,  them.  The  Riot  Act  is  an  old  Eiiirlish  statute 
enacted  about  1715,  during  the  reign  of  George  I.,  and  tlie  necessity  for  reading  it  arose 
from  a  provision  that  "  if  an}'  persons  to  the  number  of  twelve  or  more,  lu-iiig  unlawfully, 
riotously,  and  lumultuously  assembled  together,  shall  to  the  number  of  twelve  or  more 
unlawfully,  riotously,  and  lumultuously  remain  or  cotitiiiue  togeilier  by  the  space  of  one 
hour  ;ifiL*r  being  comman<led  or  requested  by  proclamation  to  disjjerse  themselves,  ihey 
shall  be  adjudged  felons,  and  shall  sutTer  death  without  benetit  of  clergy."  Tlie  statute 
jirovides  that  proclamation  shall  be  made  ojienly  and  with  loud  voice  in  these  words: 
"Our  Sovereign  Lord  the  King  chargeth  and  commaiideth  all  persons  being  assembled, 
immeiliately  to  disperse  themselves,  and  peaceably  to  depart  to  their  habitations  or  to 
tiieir  lawful  business,  ujion  the  pains  contained  in  the  A("t,  made  in  the  tir-^t  vear  of  King 
George,  for  prevenliiig  tumults  and  riotous  assemblies.  God  save  the  KinV."  Mtiking 
this  proclamation  constitutes  in  England  the  "reading  of  the  Riot  Act."  The  same 
course  may  be  pursued  in  this  country,  in  those  States  in  whicii  the  common  law  pre- 
vails, by  a  proclamation  made  in  the  name  of  tlie  Commonwealth,  State,  or  People, 
following  in  otiier  respects  the  form  above  cited  from  the  statute  of  George  L.  or  bv 
following  the  direetions  of  the  State  statute  on  the  subject,  if  anv  such  there  be.  Law 
Notes,  vol.  i.,  p.  88. 

*  Constitution,  Art,  IV,  Sec.  4,  Clause  1.  » Ibid.,  Art.  IV,  Sec.  4. 


328  MILITARY  LAW. 

Form  of  Request. — The  request,  which  must  originate  with  the  Governor 
of  tlie  State,  or  witli  the  legislature  if  that  body  be  in  session,'  is  addressed 
to  the  President,  who  by  the  terms  of  the  Constitution  is  compelled  to 
accede  to  the  request  and  to  interfere  in  behalf  of  the  lawfully  constituted 
authorities  of  the  State  in  which  the  demand  originated. °  The  appeal  is 
not  in  strictness  a  request  for  assistance,  but  an  admission  of  a  want  of 
nqmcity  on  the  2)art  of  the  State  to  deal  with  an  existing  emergency,  and 
sucli  military  operations  as  are  undertaken  by  the  United  States  in  pursu- 
ance of  such  request  are  carried  on  under  the  direction  of  the  President 
by  the  proper  military  authorities  of  the  United  Stal  ?3,  and  are  entirely 
iiulependent  of  State  control.' 

Employment  of  Military  Force  in  Connection  with  Indian  Affairs. — Tlie 
laws  of  the  United  States  impose  upon  the  Pi'esident  certain  duties  in  respect 
to  the  management  of  Indians  and  the  control  of  Indian  reservations. 
They  also  empower  him,  whenever  in  his  opinion  such  a  course  becomes 
necessary,  to  make  use  of  military  force  in  the  performance  of  the  duties  so 
imposed.  It  is  proper  to  observe  in- this  connection  that  all  matters  relat- 
ing to  Indians  and  Indian  affairs  are  by  statute  committed  to  the  exclusive 
custody  of  the  Interior  Dej^artment.  The  War  Department  as  such,  unless 
specially  authorized  by  law  or  requested  by  the  Department  of  the  Interior, 
is  without  power  to  exercise  control  over  Indian  tribes  or  to  interpose  in  the 
management  of  Indian  reservations ;  and  officers  of  the  Army  are  in  no  way 
responsible  for  the  behavior  of  Indians  or  for  the  control  of  Indian  lands 
unless,  by  engaging  in  acts  of  hostility,  they  place  themselves  in  the  status 
of  public  enemies.* 

'  Constitution,  Art.  IV,  Sec.  4,  Clause  1.  See,  also,  Paschal's  Annotated  Constitu- 
tion, p.  245. 

'  The  proviso  of  the  Constitution  "when  the  legislature  cannot  be  convened  "  may 
be  said  to  mean  when  it  is  not  in  session,  or  cannot  by  the  State  law  be  assembled  forth- 
with, or  in  time  to  provide  for  the  emergency.  When  it  is  in  session,  or  can  legally  and 
at  once  be  called  together,  it  will  not  l)e  lawful  for  the  Pre.sident  to  employ  the  Army  on 
the  application  merely  of  the  Governor.     Dig.  J.  A.  Gen.,  161,  par.  2. 

*  A  military  force  employed  according  to  Art.  IV,  Sec.  4,  of  the  Constitution,  is  to 
remain  under  the  direction  and  orders  of  the  President  as  commander-in-chief  and  liis 
military  sul)or(linates;  it  cannot  bs  placed  under  the  direct  orders  or  exclusive  disposi- 
tion of  the  Governor  of  the  Slate.     Ibid. ,  par.  3. 

In  all  ca.ses  of  civil  disorders  or  domestic  violence,  it  is  the  duty  of  the  Army  to  pre- 
.serve  an  attitude  of  indifference  and  inaction  till  ordered  to  act  by  the  President,  by  liie 
authority  of  the  Constitution  or  of  Sees.  2150,  5297,  or  5298,  R-v.  Sts.,  or  other  public 
statute.  An  officer  or  soldier  may  indeed  interfere  to  arrest  a  person  in  tl)e  act  of  com- 
mitting a  (;rime,  or  to  prevent  a  breacli  of  the  peace  in  his  presence,  but  tliis  he  does  as  a 
citizen  and  not  in  his  military  capacity.  Any  combined  effort  by  the  military,  as  such, 
to  make  arrests  or  otherwise  prevent  breaches  of  the  peace  or  violations  of  law  in  civil 
cases,  except  by  the  order  of  the  President  or  the  recpiirement  of  a  U.  S.  official  author- 
ized to  require  tiieir  services  on  a  pause  comitatus,  mu.sl  necess:irily  be  illegal.  In  a  case 
of  civil  disturbance  in  violation  of  the  laws  of  a  State  a  military  commander  cannot 
volunteer  to  intervene  with  his  command  without  incurring  a  personal  responsibility  for 
his  acts.  In  the  absence  of  the  requisite  orders  he  may  not  even  maich  or  array  his  com- 
mand for  the  purpose  of  exerting  a  moral  effect  or  an  effect  in  terrorcm;  such  a  denion- 
RtratioD,  indeed,  could  only  compromise  the  authority  of  the  United  States  while  insult- 
ing the  sovereignty  of  the  State.     Ibid.,  Ifi4,  par.  7. 

*  Section  2152,  Revised  Statutes,  contains  the  requirement  "  that  the  superintendents, 


THE  EMPLOYMENT  OF  MILITARY  FORCE.  329 

Subject  to  such  qualification,  however,  the  military  forces  of  the  United 
States  may  be  employed  in  such  manner  and  under  such  regulations  as  the 
President  may  direct: 

First.  In  the  apprehension  of  every  person  who  may  be  in  the  Indian 
country  in  violation  of  law;  and  in  conveying  him  inunediately  from  the 
Indian  country,  by  the  nearest  convenient  and  safe  route,  to  the  civil 
authority  of  the  Territory  or  judicial  district  in  which  such  person  shall  be 
found,  to  be  proceeded  against  in  due  course  of  law; 

Second.  In  the  examination  and  seizure  of  stores,  packages,  and  boats, 
authorized  by  law; 

Third.  In  i)reventing  the  introduction  of  persons  and  property  into  the 
Indian  country  contrary  to  law,  which  i)ersous  and  pro])erty  shall  be  pro- 
ceeded against  according  to  law; 


aj^eiits.  and  sub-agents  shall  endeavor  to  jirociire  the  arrest  and  trial  of  all  Indians  accused 
of  committing  any  crime,  olTense,  or  uiisdemeaiior,  aud  of  ail  olher  jieisons  who  may 
liave  committed  crimes  or  offenses  within  any  State  or  'i'enitory  and  have  fled  into  the 
Indian  country,  eitiier  by  demanding  the  same  of  the  c-hiefs  of  tlie  proper  tribe,  or  by 
.such  other  means  as  the  President  may  authorize.  The  President  may  direct  the  military 
force  of  the  United  States  to  be  employed  in  the  apprehension  of  such  Indians,  and  also 
in  preventing  or  terminating  hostilities  between  any  of  the  Indian  tribes." 

Active  hostilities  with  Indians  do  not  constitute  a  stale  of  foreign  war,  the  Indian 
tribes,  even  where  distinct  political  coinmmiities,  being  subject  to  the  sovereignty  of 
tlie  United  States.*  Warfare  inaugurated  by  Indians,  is  thus  a  species  of  domestic 
rebellion,  but  it  is  so  far  assimilated  to  foreign  war  that  during  its  pendency  aud  on 
its  theatre  the  laws  and  usages  which  govein  and  ai)ply  to  jjcrsons  during  the  e.xist- 
ence  of  a  foreign  war  are  to  be  recognized  as  in  general  prevailing  and  operative. 
The  mere  making  of  predatory  incursions  by  parties  of  Indians  with  whose  tribe  no 
general  hostilities  have  been  inaugurated  does  not  constitute  an  Indian  tear.  Diir.  J. 
A.  Gen.,  451,  par.  1. 

Held  that  the  Cherokee  Nation  during  the  late  war  did  not  occupy  the  status  of 
an  insurrectionary  State,  and  was  not  therefore  included  in  the  application  of  the 
statutes  and  proclamations  which  related  to  such  States,  but  that  its  attitude  from  the 
date  of  its  treaty  with  the  Confederate  Government  of  October  7,  1861,  to  its  treaty  with 
the  United  States  of  July  19,  1866,  was  that  of  an  ally  of  the  Confederacy  to  the  extent 
that  the  individual  members  of  the  Nation  who  took  ])art  in  hostilities  against  the  United 
States  became  legally  assimilated  with  the  enemy.     Ibid.,  452,  par.  2. 

Indians  wiio,  having  oceui)ied  an  attitude  of  hostility  or  ^m«,s/ hostility  toward  the 
United  States,  have  in  good  faith  resumed  and  been  admitted  to  fiiendl}' relations  there- 
with, are  entitled,  as  repentant  wards,  to  the  protection  of  the  Government,  and  acts  of 
violence  committed  aL^ainst  them  as  if  they  were  enemies  are  not  acts  of  legitimate  war- 
faie,  but  crimes.  Tiius  where  an  officer  in  command  of  a  regiment  of  volunteer  cavalry 
made  .a  sudden  and  violent  attack  upon  a  village  of  friendly  Indians,  (who,  having  been 
in  a  state  of  partial  hostility,  had  returned  to  their  Jillegiance  and  had  in  fact  been 
recognized  as  entitled  to  protection  by  the  military  authorities,)  and  caused  tiie  massa- 
cre of  several  hundred  jiersons,  of  whom  the  larger  portion  were  women  aiui  children. -f- — 
held  that  his  act  was  wjiolly  unauthorized  and  criminal:  and  in  view  of  the  fact  that  by 
reason  of  the  expiration  of  the  term  of  his  regiment  he  had  been  musterw<l  out  of 
the  service  before  he  could  be  brouurht  to  trial  by  court  martial. — advixcd  that,  :is  a 
vindication  of  tlie  good  name  of  the  Army  and  the  re])Utation  of  the  Government, 
which  til  is  atrocious  act  had  compromised,  there  be  issued  from  the  AVar  Department 
a  General  Order  .setting  forth  brietly  the  circumstances  of  the  crime,  aud  so  denouncing  it 
as  to  discharge  as  far  as  possible  the  military  administration  from  responsibility 
therefor.     Jbid.,  par.  3. 

*  See  Worcester  vs.  Georeia,  9  Peters.  ."ilS. 

+  See  this  raid  upon  Clieyenne  Indians  in  Colorado,  known  as  tlie  "  Sandy  Creek  Ma,<«aere," 
deserilieci  and  denounced  in  the  Report  of  the  Congressional  "  Committee  on  the  Conduct  of  the  War," 
of  May  4.  1865. 


330  MILITARY  LAW. 

Fourth.  And  also  in  destroying  und  breaking  up  any  distillery  for 
manufacturing  ardent  spirits  set  up  or  continued  within  the  Indian  country.* 

Removal  of  Intruders  from  Indian  Reservations. — The  law  not  only 
authorizes  the  removal  of  intruders  from  Indian  reservations,  but  empowers 
the  President  to  make  use  of  military  force  in  effecting  such  removals.'  The 
employment  of  troops  in  the  performance  of  this  duty  in  no  way  resembles 
their  use  in  military  operations  against  an  enemy.  Intruders  are  given 
reasonable  notice  to  quit,  and  upon  the  expiration  of  such  notice  may  be 
removed  or  ejected  by  the  use  of  sufficient  force  to  accomplish  that  pur- 
pose.   Tiie  employment  of  force  in  excess  of  such  amount  is  not  authorized. 

Restriction  upon  the  Detention  of  Arrested  Persons.— The  power  con- 
ferred by  Section  2150  of  the  Kevised  Statutes,  above  cited,  is  subject  to 


oval.      oec.  i^iii,  nev.  oiul. 

f  uiiy  person  who  bus  beeu  removed  from  ihe  Iiulinu  country  sluill  thereafter  at  auy 

;  return  or  be  found  within  the  Indian  country,  he  shall  be  liable  to  a  penalty  of  one 


'  Sec.  2150,  Revised  Statutes. 

■■'  The  Superintendent  of  Indian  affairs  and  the  Indian  agents  and  sub-agents  shall 
Lave  authority  lo  remove  from  the  Indian  country  all  persons  found  therein  contrary  to 
law  ;  and  the  President  is  autliorized  to  direct  the  military  force  to  be  employed  in  such 
removal.     Sec.  2147,  Rev.  Stat. 

If 
time 
thousand  dollars.     Sec.  3148,  ihid. 

The  Commissioner  of  Indian  Affairs  is  authorized  and  required,  with  the  aitproval  of 
the  Secretary  of  the  Interior,  to  remove  from  any  tribal  reservation  any  person  being 
tliereiu  without  authority  of  law,  or  whose  presence  within  the  limits  of  the  reservation 
may,  in  the  judgment  of  the  Coinmi.ssiouer,  be  detrimental  to  the  peace  and  welfare  of 
the  Indians;  and  may  employ  for  the  purpose  such  force  as  may  be  necessary  to  enable 
the  agent  to  effect  the  removal  of  such  person.     Sec.  2149,  ibid. 

Indian  Country.— It  will  be  observed  that  the  statute  above  set  forlh  applies  to 
Indian  country.  This  term  has  been  defined  by  the  Executive  Departments  andby  the 
courts  of  the  United  States.  It  was  held  by  the  Judge-Advocate  General  in  October, 
1877  •'  that  the  term  '  Indian  country,'  as  employed  in  the  statutes  regulating  trade  and 
intercourse  with  the  Indians  (see,  particularly,  i'h.  IV,  Title  XXVIII,  Rev.  Sts.)  might 
properly  be  detined  in  general  as  including  the  following  territory,  viz.:  Indian  reserva- 
tions occupied  by  Indian  tribes  ;  other  districts  so  occupied  to  wiiich  the  Indian  title 
has  not  been  extinguished  ;  any  districts  not  in  other  respects  Indian  country,  over 
which  the  operation  of  those  statutes  may  be  extended  by  treaty  or  Act  of  Congress."* 
Dig.  J.  A.  Gen.,  4oU,  par.  1. 


*  See  this  opinion  as  adopted  and  incorporated  in  G.  O.  97,  Hdqrs.  of  Army,  18. . :  also,  in  the  same 
connection,  14  Opins.  Alt. -Gen..  -i'M:  United  States  vs-.  Forty-three  Gallons  of  Whiskey,  -i  Otto  188; 
Bates  vs  Clark  5  Id.  ;i04;  United  States  vs.  Seveloff,  •-'  Sawyer.  ;ill.  That,  in  view  of  the  Act  of  March 
.3  1873  extending  to  it  certain  provisions  of  the  Act  of  .Juup  30.  1834,  the  Territoiy  of  Alaska  is  Indian 
country  "  so  far  as  concerns  the  introduction  and  disposition  of  spirituous  liquor,  and  that  persons 
violating  such  provisions  may  therefore  be  arrested  by  military  force,— see  In  re  Carr,  3  Sawyer,  31b; 
also  citation  from  same  case  in  note  to  Alaska,  §  -.3.  and  14  Opins.  Att.-Gen.,  3-J7.  ,     .     ,       ,j 

In  view  of  the  positive  terms  of  Sec.  21 10,  Rev.  Sts.,  an  officer  of  the  Army  not  only  may  hut  xhould 
"  take  and  destroy  any  anient  spirits  or  wine  found  in  the  Indian  country  except  such  as  may  be  intro- 
duced therein  by  the  War  Department."  The  section  imposes  this  as  a  "  <luty  "  upon  •'  any  person  in 
the  service  of  the  United  States  "—including,  of  course,  military  as  well  as  civil  officials.  Held,  how- 
ever that  the  authority  given  by  the  statiit.-  to  destroy  liquor  brought  into  an  Indian  reservation  did 
not  .-iuthorize  the  destruction  by  the  military  ol  a  liuilding,  the  private  property  of  a  citizen,  in  which 
the  liquor  was  found  stored.     Dig   J.  A.  Gen.,  45(1.  par. '.i.  ,       .      ,        ,,.       ^    ,  u     .v.     -d  „, •/!..„» 

Under  Sec  -^150  Rev  Sts.,  a  military  commander  may  be  authorized  and  directed  by  the  1  lesident 
to  arrest  by  military  force  and  deliver  to  the  pr(>T)er  civil  authorities  for  trial  any  white  persons  or 
Indians  who  may  be  in  the  Indian  country  engaged  in  furnishing  liquor  to  Indians  in  violation  of  law; 
as  also  to  prevent  by  military  force  the  entry  into  such  country  of  per.-^ons  designing  to  introduce 
liquor  therein  contrary  to  law^  Held  that  tliis  authority  to  prevent  was  clearly  an  authority  to  arrest. 
where  arrests  were  found  necessary  to  restrain  persons  attempting  to  introduce  hquor  or  other  in- 
hibited property.     Ihid..  par.  3.  •         «  ,i  „  TT„;f„^ 

In  view  of  tlie  duty  devolved  iiy  Sec.  2140,  Rev.  Sts..  upon  "any  person  in  the  service  of  the  United 
States  "  to  take  and  destroy  spirituou>^  liquors  in  the  Indian  country, /ip/fi  tliat  a  post  commander  in 
such  country  who  seized  and  destroyed  a  qufrntity  of  such  liquors  introduced  into  such  country  with- 
out the  authority  of  the  Secretary  of  War.  hv.t  not  found  within  the  limits  of  his  niiUtary  command, 
had  not  exceeded  his  powers.    Ibid.,  4.")1,  par.  4. 


THE  EMPLOYMEXT  OF  MILITARY  FORCE.  331 

considerable  restrictions,  and  "  no  person  appreliended  by  military  force 
under  the  preceding  section  siiall  be  detained  longer  than  five  days  after 
arrest  and  before  removal.  All  officers  and  soldiers  who  may  have  any  such 
person  in  custody  shall  treat  him  with  all  the  humanity  which  the  circum- 
stances will  permit."  ' 

Removal  of  Trespassers  from  the  Public  Lands. — In  respect  to  the  public 
lands,  the  L'nited  .States  stands  in  the  same  i)orfition  as  a  private  proprietor 
or  owner  of  lands  in  fee  simple,  and  as  such  may  not  only  eject  trespassers 
from  such  lands,  but  may  resort  to  the  ordinary  remedies  provided  by  law 
for  the  protection  of  real  property  from  intrusion  or  spoliation.'  In  addi- 
tion to  the  remedies  above  described,  the  President  is  expressly  authorized 
by  several  statutes'  to  make  use  of  such  military  force  as  he  may  judge 
necessary  and  proper  to  remove  trespassers  from  the  public  lands,  and  to 
remove  or  destroy  any  unlawful  enclosures  of  the  same.  As  has  been 
explained  in  respect  to  the  removal  of  intruders  from  Indian  reservations, 
the  employment  of  force  thus  authorized  is  not  in  the  nature  of  a  warlike 
or  military  undertaking,  but  rather  resembles  the  action  of  a  sheriff  or  peace 
officer  in  tiie  removal  of  a  trespasser  or  in  the  execution  of  process  of 
ejectment. 

Enforcement  of  the  Civil  Rights  Law ;  the  Intercourse  Acts ;  the  Health 
Laws  and  the  Elective  Franchise,  etc. — The  President  is  also  empowered, 
by  several  statutes,  to  employ  such  part  of  the  land  and  naval  forces  as  he 
may  deem  necessary  to  enforce  the  provisions  of  the  Civil  Rights  Act;  the 
Intercourse  Laws;  the  laws  respecting  the  enforcement  of  quarantine  and 
health  laws  and  in  the  protection  of  persons  arrested  witli  a  view  to  their 
extradition.  "  No  officer  of  the  Army  or  Xavy  of  the  United  States  shall 
prescribe  or  fix,  or  attempt  to  prescribe  or  fix,  by  proclamation,  order,  or 
otherwise,  the  qualifications  of  voters  in  any  State,  or  in  any  manner  inter- 
fere with  the  freedom  of  any  election  in  any  State,  or  with  the  exercise  of 
the  free  right  of  suffrage  in  any  State."  ' 

■  Section  2151,  Revised  Statutes. 

*  The  provision  of  June  18.  1878,  is  not  to  be  construed  as  interfering  with  the 
authority  and  duty  of  the  President,  to  employ  a  necessary  military  force  for  the  removal 
of  trespassers  from  a  military  reservation;  such  employment  not  being,  properly  speak- 
ing, "for  the  inupose  of  executing  the  law,"  but  a  mere  protecting,  by  the  E.xecutive 
Department,  of  public  property  in  its  militarv  charge.     Di^.  J.  A.  Gen.,  162,  par.  6. 

»  Sec.  2460,  Rev  Sts.,  Sec.  1,  Act  of  March  3,  1807,  r2  Stat,  at  Large,  445,)  and 
February  25,  1885.  (23  ibid.,  322.) 

^  Title  XXIV.  Rev.  Sis  ;  Sees.  5301-5322,  ibid.;  Sec.  4792,  ibid.;  Sees.  5275-5277.  tbid.; 
Sees.  2003,  2004,  ibid.  Squatters  and  other  trespassers  and  intruders  may  and  shouUi  be 
expelleii,  by  military  force  if  necessary,  from  a  military  reservation.*  But  such  persons 
"When  they  have  been  suffered  to  own  and  occupy  buildings  on  a  reservation  should  be 
allowed  reasonable  time  to  remove  them.  If  not  removed  after  due  notice  the  same 
should  be  removed  by  tlie  military.  Material  al)andoned  on  a  reservation  by  a  trespasser, 
on  vacating,  may  lawfully'  be  utilized  by  the  commander  for  completingroads,  walks, 
etc.     Squatters  on  United  States  reservations  may  be  forced  therefrom  by  criminal  pro- 


•  See  a.  O.  62  of  1869. 


Q 


32  MILITARY  LAW. 


Suppression  of  Peonage  in  New  Mexico. — Peonage  is  a  term  applied  to  a 
coudition  of  involuntary  servitude  which  existed  in  Mexico,  to  which  under 
certain  circumstances  a  debtor  was  reduced,  by  operation  of  law,  until  he 
had  paid  or  worked  out  his  debt.'  The  practice  existed  at  one  time  in  New 
Mexico,  but,  being  opposed  to  the  public  policy  of  the  United  States,  was 
suppressed  by  an  enactment  of  Congress  in  1867.'     The  statute  which  sup- 

ceedings  had  under  Sec.  5388,  Rev.  Sts.,  or  ejected  by  civil  action.  Dig.  J.  A.  Gen., 
516.  par.  13. 

Where  squatters  have  made  any  considerable  improvements  upon  a  reservation,  and 
their  value  has  been  duly  estimated, — as  by  a  board  constituted  by  the  department  com- 
mander and  presenting  iu  its  report  all  the  evidence  on  the  subject, — an  award  by  the 
Secretary  of  War,  acquiesced  in  by  the  claimant,  may  be  sued  upon  iu  the  Court  of  Claims, 
which  (in  the  absence  of  evidence  of  fraud  or  mistake)  will  accept  such  award  as  con- 
clusive.*   Ibid.,  par.  14. 

The  general  principle  of  tlie  authority  to  remove  trespassers,  their  structures  and 
property,  from  land  of  the  United  States  embraced  in  a  military  reservation  held  spe- 
cially applicable  where  the  intrusion  was  for  an  injurious  purpose,  as  where  the  object 
was  to  lay  a  sewer  intended  to  discharge  into  a  main  sewer  constructed  by  the  United 
States  upon  and  for  the  use  of  its  own  premises.  In  this  instance,  as  the  trespass  was 
committed  by  the  authorities  of  a  municipality,  advised  that  leasouable  notice  be  given 
them  to  remove  tiieir  property  before  resorting  to  military  force  for  the  purpose,  and  mean- 
time that  precautions  be  taken  to  prevent  a  connection  between  the  proposed  sewer  and 
the  sewers  under  the  control  of  the  United  States.     Ibid  .  517,  par.  16. 

Where  certain  persons  had  entered  unlawfully  upon  a  military  reservation,  and  had 
proceeded  to  cultivate  the  soil  of  the  same  for  their  personal  benefit  and  to  lead  off  water, 
needed  for  the  use  of  the  garrison,  in  order  to  irrigate  the  ground  so  cultivated,  advised 
that  the  commandant  be  instructed  to  give  such  persons  reasonable  notice  to  quit  with 
their  projierty,  and  if  they  did  not  comply,  to  remove  them  by  military  force  beyond  the 
limits  of  the  reservation. f     Ibid.,  513,  par.  6. 

The  cutting  of  timber  on  a  military  reservation  is  an  offense  against  the  United  States, 
made  punishable  by  Sec.  5388,  Rev.  Sts.,  as  amended  by  the  Acts  of  June  4,  1888.  and 
of  March  3,  1875,  c.  151.  So  grass  cut  on  a  reservation  and  removed  as  hay  would  be 
personal  property  of  which  the  asportation  would  be  larceny  under  the  Act  of  March  3, 
1875,  c.  144.  And  persons  coming  upon  a  military  reservation  for  the  purpose  of  cutting 
wood  or  grass,  or  to  plow  up  the  soil,  or  commit  other  trespass,  may  be  removed  as 
intruders,  and  the  post  commander  should  not  hesitate  to  resort  to  military  foi  ce  if  neces- 
sary for  the  purpose.  And  he  may  of  course  prevent  such  trespassers  from  carrying  off 
with  them  any  property  of  the  United  States.     Ibid.,  516,  par.  15. 

Held  that  the  Act  of  iMarch  3,  1875,  "to  protect  ornamental  and  other  trees  on 
government  reservations  and  on  lands  ptn-chased  by  the  United  States,  etc.,  which 
nnakes  penal  the  unlawful  (•utting  or  injuring  of  such  trees,  was  clearly  not  intended  to, 
and  did  not.  preclude  the  reasonable  cutting  of  wood  on  military  reservations,  under  the 
direction  of  the  proper  Officer,  for  the  supplying  of  the  necessary  fuel  for  the  garrisons 
stationed  thereon;  the  authority  to  establish  a  reservation,  where  in  fact  lawfully  existing, 
being  deemed  to  include  an  authority  to  efficiently  maintain  the  same  when  established. 
Ibid.,  513,  par.  4. 

Held  that  the  riirht  to  the  "free  and  open  exploration  and  purchase"  of  mineral 
land.s,  accorded  to  citizens,  etc.,  by  Sec.  2319,  Rev.  Sts.,  could  not  authorize  an  entry, 
for  the  purpose  of  prospecting  for  mines,  upon  a  military  reservation  once  duly  defined 
and  established  by  the  President;  the  mineral  lands  intended  by  the  statute  being 
clearly  such  as  are  included  within  the  "public  lands  "of  the  United  States.  Ibid., 
par.  5. 

'  Anderson's  Law  Diet.:  Act  of  Marcli  2,  1867  (14  Siat.  at  Large,  546). 

'The  Act  of  March  2,  1867,  provides  that  "  the  holding  of  any  person  to  service  or 
labor  under  the  system  known  as  peonage  is  abolished  and  forever  prohibited  in  the 
Territory  of  New  Mexico,  or  in  any  other  Territory  or  State  of  the  United  States ;  and 


»  Maddux  vs.  U.  S.,  20  Ct.  CI.  19.3,  199. 

+  As  to  thie  aiithoritv  to  remove  trespassers  from  military  reservations,  see  3  Opins.  Att.-Gen..  268; 
9  id.,  106,  476;  G.  O.  74,  Hdqrs.  of  Army,  1869.  That  this  authority  is  not  deemed  to  be  affected  by  the 
provision  of  sec.  15  of  the  Act  of  June  18,  1878,  see  Dig.  J.  A.  Ueti.,  162.  par.  6. 


THE  EMPLOYMENT  OF  MIUTAHY  FORCE.  333 

pressed  peon.ige  contained  the  requirement  that  "every  person  in  the  mili- 
tary and  civil  service  in  the  Territory  of  New  Mexico  shall  aid  in  the 
enforcement  "  of  the  section  directing  its  abolition.' 

The  Neutrality  Laws. — Neutrality  is  a  status  or  relation  occupied  by  a 
State  toward  other  States  or  parts  of  States  which  are  engaged  in  j.ublic 
war.  Tile  relation,  from  the  nature  of  the  case,  presumes  the  existence  of  a 
state  of  war,  and  of  belligerents  who  are  participants  tlierein,  since  in  time 
of  peace  there  can  be  no  status  of  belligerency,  and  as  a  consequence  no 
occasion  for,  or  status  of,  neutrality.  The  neutrality  laws  of  the  I'nited 
States,  however,  are  so  framed  as  not  only  to  secure  its  neutrality  during 
the  existence  of  a  state  of  public  war,  but  to  enable  its  friendly  relations  to 
be  maintained  with  States  in  which  disaU'ection  or  insurrection  exists,  but 
with  which  the  United  States  is  and  desires  to  continue  at  peace.  These 
statutes  may  therefore  become  operative  before  a  state  of  public  war  lias 
been  declared  or  even  acknowledged  to  exist. 

Acts  Forbidden.— It  is  the  purpose  of  the  neutrality  laws  of  the  United 
States  to  preserve  its  friendly  relations  with  belligerents,  by  refraining  from 
giving  to  either  party  any  assistance  in  the  prosecution  of  an  existing  Avar. 
To  that  end  the  neutrality  laws,  under  appropriate  penalties,  forbid: 
(1)  making  the  territory  of  the  United  States  a  recruiting-ground  for  either 
belligerent;  {'l)  fitting  out,  arming,  or  equipping  a  military  or  naval  expedi- 
tion within  its  territory,  for  the  purpose  of  carrying  on  hostile  operations 
against  a  State  with  which  the  United  States  is  at  peace;  and  (3)  augment- 
ing the  armament  or  equipment  of  such  an  expedition  within  its  ports  or 
territorial  waters.  With  a  view  to  the  adequate  enforcement  of  these 
statutes,  the  President  is  empowered  to  make  use  of  such  portions  of  the 
land  or  naval  forces  as  he  may  deem  necessary  in  preventing  the  departure 
of  such  expeditions,  in  taking  possession  of  and  detaining  vessels,  or  in 
compelling  the  departure  of  such  vessels  as  "  by  the  laws  of  nations  or  the 


all  acts,  laws,  resolutions,  orders,  rejrulations,  or  usages  of  the  Territory  of  New  ^[exicn.  or 
of  any  other  Territory  orState,  whicli  have  heretofore  establislicd.  maintained,  or  enforced, 
or  by  virtue  of  which  any  attempt  shall  hereafter  he  made  to  establisli.  maintain,  or 
enforce,  directly  or  indirectly,  the  voluntary  or  involuntary  service  or  labor  of  any  per- 
sons as  peons. 'in  liquidation  of  any  debt  or" obligation,  or  "otherwise,  are  declared  null 
and  void."* 

'  Section  2  of  the  same  Act  required  that  "  every  person  in  the  military  or  rivil  ser- 
vice in  the  Territory  of  New  Mexico  sliall  aid  in  the  enforcement  of  tlie  preceding  sec- 
tion."!    See.  also.  Sections  5.526  and  5.532,  Revised  Statutes. 

Prior  to  the  passage  of  the  Act  above  cited,  it  was  held  by  the  Judge-Advocate 
General  that  •'  in  view  of  the  provision  of  the  Act  of  .Tuly  17,  1862,  that  '  no  person  in 
the  militar)'  service  sliall  assume  to  decide  upon  the  validity  of  the  claim  of  any  person 
to  the  service  or  labor  of  any  other  person,  or  surrender  up  anj'  such  person  to  the 
claimant,  on  pain  of  being  dismissed  from  the  service,'  held  that  an  officer  of  the  Army 
stationed  in  New  Mexico,  who  caused  to  be  delivered  to  his  former  master  there  a  fugi- 
tive peon,  was  liable  to  trial  by  court-martial,  and,  upon  conviction,  to  dismissal."  Dig. 
J.  A.  Gen..  585. 

•  Section  1990.  Revised  Statutes, 
t  Section  i991,  ibid. 


33i  MILITARY  LAW. 

treaties  of  the    United   States    ought    not   to    remain   within    the   United 
States.'" 

'  For  the  iifutrulity  laws,  see  ^^  5381-5091,  Kevistul  Statutes. 

The  Meiitralily  Act  has  beeu  uuifonuly  Heated  by  Uie executive  deparliueuts  and  by 
judiresof  the  Uuiled  States  courts  as  euibracinij  warlike  enterprises  set  ou  foot  in  thi-! 
country  aiiainst  a  friendly  power  at  peace  wilh  all  the  world.  U.  S.  rs.  Sullivan,  y 
N.  Y.  Leg.  Obs..  257. 

The  oriianization  in  one  country  or  State  of  combinations  to  aid  or  abet  rebellion  in 
another.  i>r  in  any  other  way  to  act  on  its  political  institutions,  is  a  violation  of  national 
amity  and  comity,  and  an  act  of  semi-hostile  interlerence  with  the  alTairs  of  other  peo- 
ples. .  .  .  But  there  is  no  muuieipal  law  to  forbid  and  punish  such  combinations 
either  in  tlie  Uniled  States  or  Great  Britain.     Opin.  Att.-Gen.,  216. 

The  i)olic3'  of  this  country  is,  and  ever  has  been,  a  perfect  neutrality  and  non-inter- 
ference in  the  quarrels  of  otlier  nations.     ;j  Opin.  Att.-Gen.,  739. 

Tlie  Act  of  April  oO,  181S,  like  that  of  June  5,  1794,  was  intended  to  secure,  beyond 
all  risk  of  violation,  the  neutrality  and  pacilic  policy  which  they  consecrate  as  our  fun- 
damental law.     Ibid.,  741. 

The  enlisimenl  of  seamen  or  others  for  marine  service  on  Mexican  steamers  in  New 
York,  they  not  being  Mexicans  transiently  within  the  United  States,  is  a  clear  violation 
of  Section  5282,  and  the  persons  enlisted,  as  well  as  the  ofHcers  enlisting  them,  are  liable 
to  the  penalties  thereby  incurred.     4  Opin.  Att.-Gen.,  ;336. 

This  section  applies  to  foreign  consuls  raising  troops  in  the  United  States  for  the 
military  service  of  Great  Britain.  7  ibid. ,  367.  It  does  not  apply  to  those  who  go  abroad 
for  foreign  enlistment,  or  to  those  who  transport  such  persons.  U.  S.  ts.  Kazinski,  2 
Sprague,  7.  The  enlistment  must  be  made  within  the  territory  of  the  United  States, 
and  the  .section  does  not  appl}'  to  one  who  goes  abroad  with  intent  there  to  enlist.  Ibid. 
The  words  "soldier"  and  "  enlist,"  as  used  in  this  section,  are  to  be  understood  in  their 
technical  sense.     Ibid. 

To  constitute  an  offense  under  Section  5283,  the  vessel  must  be  fitted  out  and  armed 
with  the  specific  intent.  U.  S.  vs.  Skinner,  1  Brun.  Coll.  Cases.  It  is  not  necessary 
that  the  vessel  should  be  armed  or  manned  for  the  purpose  of  committing  hostilities 
before  she  leaves  the  United  States  if  it  is  the  intention  that  she  shall  be  so  fitted  subse- 
quently (The  City  of  Mexico,  28  F.  R.  ,148),  or  if  the  separate  parts  of  the  expedition 
are  to  be  united  on  the  high  seas.  U.  S.  m.  The  Mary  N.  Ilogan,  18  Fed.  Rep.,  539, 
and  20  ibid.,  50. 

The  status  of  the  in.surgent  party  will  be  regarded  by  the  courts  as  it  is  regarded  by 
the  political  or  executive  departments  of  the  United  States  at  the  time  of  the  commis- 
sion of  the  allesed  offense.  Gelston  vs.  Hoyt,  3  Wheat.,  246,  324;  U.  S.  vs.  Palmer, 
ibid.,  610.  625;  Kennett  vs.  Chambers,  14  How.,  38;  Wharton,  Int.  Law  Dig.,  551.  552; 
U.  S.  rs.  Titmibull,  48  F.  R.,  99,  104.  The  word  "  people."  as  used  in  this  section,  "  is 
one  of  the  denominations  applied  by  the  Act  of  Congress  to  a  foreign  power."  U.  S.  vs. 
Quincy,  6  Pet.,  445. 

I  know  of  no  law  or  regulation  wliich  forbids  any  person  or  government,  whether 
the  political  designation  be  real  or  a.ssumed,  from  purchasing  arms  from  the  citizens  of 
the  United  States  and  shipping  them  at  the  risk  of  the  purchaser.  10  Opin.  Att.-Gen., 
453.  The  sending  of  munitions  of  war  from  a  neutral  country  to  a  belligerent  port  for 
sale  as  articles  of  commerce  is  unlawful  only  as  subjecting  such  property  to  capture. 
The  Santissima  Trinidad,  7  Wheat..  283;  The  City  of  Mexico,  24  F.  R..  924.  It  is  the 
right  of  a  belligerent  to  purchase  goods  and  instruments  of  war  in  a  neutral  nation,  but 
it  may  be  denied  by  a  law  passed  for  such  purpose.     10  Opin.  Att.-Gen.,  61. 

The  provisions  of  this  section  do  not  apply  to  a  vessel  which  receives  arms  and 
munitions  of  war  in  this  country  as  cargo  merely,  with  intent  to  carry  them  to  a  party 
of  insurgents  in  a  foreign  coimtry,  but  not  with  the  intent  that  they  shall  constitute  any 
part  of  tlie  fittin<rs  or  furnishings  of  the  vessel  herself.  U.  S.  vs.  The  Itata,  56  F.  R., 
608;  U.  S.  v.'i.  2000  Cases  of  Rifles,  ibid.  A  vessel  is  not  liable  to  forfeiture  under  this 
section,  nor  is  she  liable  to  condemnation  as  piratical  on  the  ground  that  she  is  in  the 
employ  of  an  insurgent  partv  which  has  not  been  recognized  by  the  United  States  as 
having  l)elligerent  rights.  U.  S.  vs.  The  Itata,  56  F.  R.,  608;  U.  S.  vs.  Weed,  5  Wall, 
62;  The  Watchful,  6  Wall.,  91. 

In  the  case  of  The  lIor.sa(163  U.  S.,  632),  decided  on  appeal  in  the  Supreme  Court  of 
the  United  States  on  May  35,  1896,  it  was  held  "  that  any  combination  of  men  organ- 
ized to  go  to  Cuba  to  make  war  upon  its  government,  provided  with  arms  and  ammu- 
nition,  constitutes  a  military  expedition.     It  is  not  necessary  that  the  men  shall  be 


THE  EMPLOYMENT  OF  MILITARY  FORCE.  335 

Restriction  upon  the  Use  of  Military  Force. — The  several  "-rants  of 
power  to  llie  Executive  in  counectiou  wilii  the  use  of  military  force  are 
coupled  with  an  important  statutory  restriction  whicli  makes  it  unhiwfiil 
*'  to  employ  any  part  of  the  Army  of  the  United  States,  as  a  posse  comitalus 
or  otherwise,  for  the  purpose  of  executing  the  laws  except  in  such  cases  and 
under  such  circumstances  as  such  employment  of  said  force  may  be  expressly 
authorized  by  the  Constitution  or  by  Act  of  Congress."  ' 

The  duty  of  slierififs,  nuigistrates,  coroners,  and  other  civil  oflicers  in 
respect  to  the  preservation  of  the  i)eace  is  well  known;  it  is  an  outo-rowth  of 
the  common  law  and  has  been  recognized  by  statute  in  most  States  of  the 
Union.  Whenever,  in  the  opinion  of  the  sherilf,  the  responsible  conservator 
of  the  peace,  such  a  course  becomes  necessary,  he  may  summon  to  his  assist- 
ance what  is  known  as  the  posse  coniitatus,  that  is,  the  body  of  male  citizens 
of  the  county  above  fifteen  years  of  age,  and  may  command  them  to  aid 
him  in  the  execution  of  process,  in  the  preservation  of  the  peace,  and  in  the 
performance   of  other  lawful  duties  requiring  and    involving  the   use  of 


drilled,  put  in  uniforni.  or  prepaied  for  efficient  service,  nor  tliiit  they  sliall  liave  been 
organized  as  or  according  to  the  tactics  or  rules  wliicli  relate  to  what  fs  known  as  infan- 
try, cavalry,  or  artillery.  It  is  sutlicient  that  they  shall  have  combined  and  organized 
here  to  go  there  and  make  war  on  a  foreign  government,  and  to  have  provided  them- 
selves with  the  means  of  doing  so.  Whether  such  provision,  as  by  arming,  etc.,  is 
necessary  need  not  be  decided  in  this  case.  Nor  is  it  important  thai  they  intende(i' to 
make  war  as  an  independeiU  body  or  in  connection  with  others.  Where  men  go  with- 
out such  combination  and  oiganization  to  enlist  as  individuals  in  a  foreign  army,  they 
do  not  constitute  such  military  expedition,  and  the  fact  that  the  vessel  carrving' them 
might  carry  arms  as  merchandise  would  not  be  important."  See,  also,  The  Est'rella  4 
Wh.,  298;  The  Gran  Para,  7  Wh.,  471;  The  Santa  Maria,  7  Wh..  490.  The  Moiite 
Allegre,  7  Wh.,  520;  U.  S.  ts.  Reyburn,  6  Pet.,  ^52;  U.  S.  vs.  Quincy,  6  Pet..  445.  The 
word  "  people,"  as  used  in  Section  5283,  Revised  Statutes,  covers  any  insurgent  or  insur- 
rectionary bodv  conducting  hostilities,  although  its  belligerency  has  not  been  reco"-nized 
by  the  United  States.     The  Three  Friends,  166  U.  S.,  1. 

The  repair  of  Mexican  war-steamers  in  the  port  of  New  York,  together  with  the 
augmenting  their  force  by  adding  to  the  ntimber  of  their  guns  or  byV-hanging  those 
originally  on  board  for  those  of  larger  calibre,  or  by  the  addition  of  anv  equipment 
solely  applicable  to  war,  is  a  violation  of  Section  5285.'  But  the  repair  of  their  bottoms 
or  copper,  etc.,  does  not  constitute  any  increase  or  augmeniaticni  of  force  within  the 
meaning  of  the  Act,  ami  the  steamers  are  not  liable  to  seizure  by  any  judicial  process 
under  it.     4  Opiu.  Att.-Gen.,  336. 

The  taking  on  of  a  crew  of  American  citizens,  or  of  aliens  domiciled  in  the  United 
States,  would  constitute  a  violation  of  this  section.     The  Alerta,  9  Cranch,  359. 

When  a  party  of  insurgents  already  organized  and  carrying  on  war  against  the  gov- 
ernment of  a  foreign  country  seiul  a  vessel  to  procure  arms  and  ammunition  in' the 
United  States,  the  act  of  purchasing  such  arms  and  ammunition  and  placing  them 
aboard  the  vessel  is  not  within  the  scope  of  Section  5286,  which  prescribes  a  penalty  for 
every  person  who,  within  the  limits  of  the  United  States,  begins  or  sets  on  foot  or  pre- 
pares or  provides  the  means  for  Juiy  military  expedition  or  enterprise  "  to  be  carried  on 
from  thence."  Such  expeditions  and  cnterpri-ses  nuist  originate  within  the  jurisdiction 
of  the  United  States,  and  the  terms  of  the  statute  do  not  apply  to  an  expedition  ori>n- 
nating  witiiin  the  territory  of  a  foreign  state.  U.  S.  rs.  Trumbull,  48  F.  R.,  99.  For  the 
liability  of  the  officers  of  the  ship,  see  U.  S.  rs.  Rand,  17  Fed.  Rep.,  142. 

The  law  (Section  5289,  Revised  St!it\Ues)  does  not  prohibit  armed  vessels  belnneine  to 
citizens  of  the  United  States  from  sailing  out  of  our  ports  ;  it  only  requires  the  owners  to 
give  security  that  such  vessels  shall  not  be  employed  by  them  to  commit  hostilities 
against  foreign  powers  at  peace  with  the;  United  States.     U.  S.  rs.  Quincy,  5  Pet     445 

'  Sec.  15.  Act  of  June  18,  1878  (20  Stat,  at  Large,  152). 


336  MILITARY  LAW. 

physical  force.  The  several  marsluils  of  the  United  States  are  similarly 
empowered  to  command  the  services  of  bystanders  in  the  execution  of  process 
of  the  Federal  courts  and  in  the  preservation  of  the  Federal  peace,  that  is, 
in  the  enforcement  of  the  laws  of  the  United  States  as  distinguished  from 
those  of  the  several  States. 

Purpose  of  the  Restriction. — It  was  the  purpose  of  this  restriction  to 
prohibit  the  use  of  the  troops  of  the  United  States,  either  individually  or  in 
organized  bodies,  as  parts  of  the  ;;osse  comitatus,  State  or  Federal,  by 
making  their  use  unlawful  for  the  purpose  of  executing  the  laws,  except 
in  such  cases  and  under  such  circumstances  as  such  employment  of  said  force 
may  be  expressly  authorized  by  the  Constitution  or  by  Act  of  Congress.' 


1  Inasinucli  as  it  was  uot  expressly  aulhorized  by  any  Act  of  Congress  that  UuUed 
Slates  marshals  should  be  empowered  to  summon  the  milUary  to  serve  on  ix  posse  eomi- 
tatns  (but  this  was  authorized  only  indirectly  and  impliedly  l)y  the  provision  of  the  Act 
of  S.'ptember  24  1789,  incorporated  iu  Section  787  of  the  Revised  Statutes),*  the  Army 
could  not  under  the  existin^^  law,  legally  act  on  the  posse  comttatus  of  a  marshal  or 
tleputy  maishal  of  the  United  Slates.f     Dig.  Opin.  J.  A.  Gen.,  1(52,  par   6. 

In  the  absence  of  such  an  "unlawful  combination"  as  is  contemplated  by  Section 
5298  Revised  Statutes,  the  President  would  uot  be  authorized  to  employ  a  military 
force  to  assist  inspectors  of  customs  iu  seizing  smuggled  property  or  arresting  persona 
concern,  d  in  violations  of  the  revenue  laws,  such  an  employment  uot  being  expressly 
authorized  by  any  statute.     Ibid.  ,  .         , 

Wiienever  a  marshal  or  deputy  marshal  was  prevented  from  making  due  service 
of  judicial  process,  for  the  arrest  of  persons  or  otherwise,  by  the  forcible  resistance  or  oppo- 
sition of  an  unlawful  combination  or  assemblage  of  persons,  the  President  was  expres.sly 
authorized  by  Section  5298,  Revised  Statutes,  to  employ  such  part  of  the  army  as  he  might 
deem  necessary  to  secure  the  due  service  of  such  process  and  execute  the  law  ;  hrst. 
however,  in  any  such  case  (as  in  any  case  arising  under  Sections  5297  and  5299)  making 
proclamation  as  required  by  Section  5300.     Ibid. 

Notwithstanding  the  legislation  of  .June  18,  1878,  the  President  was  authorized 
to  employ  the  military  to  arrest  and  prevent  persons  engaging  in  introducing  liquor  into 
the  Indian  country  contrary  to  law,  as  also  to  arrest  persons  being  otherwise  in  the  Indian 
country  in  violation  of  lavv,^  or  to  make  the  arrest  therein  of  Indians  charged  with  the 
commission  of  crime,  such  employment  being  expressly  authorized  by  Sections  2150  and 
2152,  Revised  Statutes.     Ibid. 

The  President  was  authorized  by  Section  2150,  Revised  Statutes,  to  remove  by 
military  force,  after  a  reasonable  notice  to  quit,  certain  persons  commorant  upon  an 
Indian  reservation  contrary  to  the  terms  of  a  treaty  between  the  United  States  and  the 
tribe  occupying  the  reservation,  and  who  therefore  were  there  "in  violation  of  law  "  in 
the  sense  of  that  section,  i^    Ibid. 

The  provision  of  June  18,  1878.  was  not  to  be  construed  as  interfering  with  the 
authoriy  and  duty  of  the  President  to  employ  a  necessary  military  force  for  the  removal 
of  trespassers  from  a  military  reservation,  such  employment  not  being,  properly  speak- 
ing, "for  the  purpose  of  executing  the  laws,"  but  a  mere  protecting,  by  the  executive 

*  6  Opin.  Att.-Gen..  471  ;  Letter  of  Attorney-General  Evarts  to  the  United  States  marshal  for  the 
Norttiern  Distiict  of  Florida,  Attorney-General's  Office.  Augrust  ao.  1868;  General  Instructions  to  United 
States  marshals  from  Attorney-General  Tafl,  published  in  General  Orders,  96,  Headquarters  of  Army, 
1876. 

tSee.  to  a  similar  effect.  Opinion  of  the  Attorney-General  of  October  10,  1878  (16  Opin.,  162);  also 
19  Opin..  ags 

X  But  note  that,  in  view  of  the  provisions  of  Section  21.t1,  Revised  Statutes,  an  officer  of  the  Army 
who  detains  a  person  arrested  imder  Section  'i\H)  longer  than  five  days  before  "conveying  him  to  the 
civil  autliority,"  or  stibjects  hitii  when  in  arrest  to  unreasonably  harsh  treatment,  renders  himself 
liable  to  an  action  in  damag;es  for  false  imprisonment.  In  re  Carr,  3  Sawyer,  316;  Waters  us.  Campbell, 
5  ihid..^ 

§  See  14  Opin.  Att  -flen..  4?11 :  20  ihid..  24ri ;  nnd  note  the  proclamation  of  the  President  published 
in  General  Orders.  16.  Headquarters  of  Army,  1SH0.  relating  to  the  intrusion  of  unauthorized  persons 
upon  the  "Indian  Territory "  and  declaring  that  the  Army  would  be  employed  to  effectuate  their 
removal  if  necessary. 


THE  EMPLOYMENT  OF  MlLlTAllT  FORCE.  '337 

Use  of  Military  Force  in  the  Execution  of  the  Law. — If  time  will  admit, 
applications  for  the  use  of  troops  for  sucii  purposes  must  be  forwarded,  with 
statements  of  ull  material  facts,  for  tlie  consideration  and  action  of  the 
President;  l)ut  in  case  of  sudden  and  unexpected  invasion,  insurrection,  or 
riot,  endangering  the  public  property  of  the  United  States,  or  in  case  of 
attemj)ted  or  threatened  robbery  or  interruption  of  the  United  States  mails, 
or  other  equivalent  emergency  so  imminent  as  to  render  it  dangerous  to 
await  instructions  requested  through  the  speediest  means  of  communication, 
an  otVicer  of  the  Army  may  take  such  action  before  the  receipt  of  instructions 
as  the  circumstances  of  the  case  and  the  law  under  which  he  is  acting  may 
justify,  and  will  promjitly  report  his  action  and  the  circumstances  requiring 
it  to  tiie  Adjutant-(ieneral  of  the  Army,  by  telegrapii  if  possible,  for  the 
information  of  the  President.' 

In  the  enforcement  of  the  laws  troops  are  employed  as  a  part  of  the  mili- 
tary power  of  tlie  United  States,  and  act  under  the  orders  of  the  President 
as  Commander-in-Ciiief.  They  cannot  be  directed  to  act  under  tlie  orders 
of  any  civil  officer.  The  commanding  officers  of  troops  so  employed  are 
directly  responsible  to  their  military  superiors.  Any  unlawful  or  unautho- 
rized act  on  their  part  would  not  be  excusable  on  the  ground  of  an  order  or 
request  received  by  them  from  a  marshal  or  any  other  civil  officer.' 


departraeui,  of  public  property  in  its  military  charge.*  Dig.  Opiii.  J.  A.  Gen..  16'2, 
par.  6 

111  the  abseuce  of  any  expres.s  provisiou  contained  in  the  acts  autliorizing  the  Presi- 
dent to  make  reservatioiis  of  forest  lands  (Acts  of  September  25  and  October  1,  1890,  and 
March  3,  1891,  sec.  24).  by  wliich  he  is  e.xpressjy  empowered  to  use  the  army  in  execu- 
tion of  such  statutes,  held  that  the  President  would  not  be  authorized  to  employ,  as  a 
posse  comitatus  or  otherwise,  the  military  forces  to  aid  in  enforcing  the  rcLnilatious 
estal)li.shed  by  tlie  Secretary  of  the  Interior  for  tlie  care  and  management  of  such  lands. 
Such  emplovmeiit.  il  pcrmiried,  would  render  the  troops  trespasser.-;  and  liable  to  civil 
suits  and  prosecutions.     Ii>td.,  165.  par.  9. 

'  Para-rraph  489,  Army  Kegulations  of  1895.  The  following  paragraphs  of  the 
Army  liegulatious  of  1895  also  contain  instructions  as  to  the  manner  in  which  troops 
shall  be  employed  : 

Ortieers  of  the  Army  will  not  permit  troops  under  their  command  to  be  used  to  aid 
the  civil  authorities  as  a  posse  comitatus.  or  in  execution  of  the  laws,  except  as 
provided  in  the  foregoing  paragraph  (paragraph  487).     Par.  488,  A.  K.  1895. 

'^  Par.  490,  Ibid  Troops  c-illed  into  action  against  a  mob  forcibly  resisting  or 
obstructing  the  execution  of  the  law.s  of  the  United  Stales,  or  attempting  to  destroy 
property  belonging  to  or  under  the  protection  of  the  United  States,  are  governed  by  the 
generalreijulations  of  the  Army  and  apply  military  tactics  in  respect  to  the  manner  in 
which  they  shall  act  to  accoiuiilish  the  desired  end.  It  is  jturely  a  tactical  (jue>tion  in 
what  mariner  they  shall  use  tlie  weapons  with  wliich  they  are  armed — wheiher  by  tire 
of  musketry  and  artillery  or  by  the  use  of  bayonet  and  sabre,  or  by  iioth,  and  at  what 
stage  of  the  operations  each  or  either  mode  of  attack  shall  be  employed.  This  tactical 
quL-stion  will  be  decided  by  the  immediate  commander  of  the  troops,  according  to  his 
judgment  of  the  situation.  The  tire  of  troops  should  lie  withheld  until  timely  warning 
has  l)een  given  to  the  innocent  who  may  be  niintrled  with  the  mob.  Troops  must  never 
lire  into  a  crowd  unless  ordered  by  their  conunanding  otlicer.  ex(>ept  iliat  single 
selected  sharpshooters  may  shoot  down  individual  rioters  who  have  tired  upon  or  thrown 
missiles  at  the  troops.    As  a  general  rule  the  bayonet  alone  should  be  used  against  mixed 


*  ••  Due  caution  should  be  observed,  however,  that  in  exeouiiner  this  duty  there  be  no  unnecessary 
or  wanton  harm  done  to  t)ersons  or  property."     Opiii.  Att.-(jien.,  A'S. 


33 S  MILITARY  LAW. 

Duty  of  the  Army  to  Refrain  from  Interference. — It  has  been  seen  that 
in  all  cases  of  civil  disorders  or  domestic  violence  it  is  the  duty  of  the  Army 
to  preserve  an  attitude  of  indifference  and  inaction  till  ordered  to  act  by  the 
President,  by  the  authority  of  the  Constitution  or  other  public  statute.' 

crowds  ill  the  first  stages  of  a  revolt.  But  as  soou  as  sufficient  warning  has  been  given 
to  enable  the  innocent  to  separate  themselves  from  the  guilty,  the  action  of  tlie  troops 
should  be  governed  solely  by  the  tactical  considerations  involved  in  the  duty  they  are 
ordered  to  perform.  Thej'  should  make  their  blows  so  effective  as  to  promptly  suppress 
all  resistance  to  lawful  auihoiily,  and  should  stop  the  destruction  of  life  the  moment 
lawless  resistance  has  ceased.  Punishment  belongs  not  to  the  troops,  but  to  the  courts 
of  justice.     Par.  491,  Arni}'^  Regulations  of  1895. 

■  Dig.  J.  A.  Gen.,  164,  par.  7.  An  officer  or  soldier  may,  indeed,  interfere  to  arrest 
a  person  in  the  act  of  comnulling  a  crime,  or  to  prevent  a  breach  of  the  peace  in  his 
presence,  but  this  he  does  as  a  citizen  and  not  in  his  military  capacity.  Any  combined 
effort  by  the  military,  as  such,  to  make  arrests  or  otherwise  jirevent  breaches  of  the 
peace  or  violations  of  law  in  civil  cases,  excejit  l)y  the  order  of  the  President,  must 
necessarily  be  illegal.  In  a  case  of  civil  disturbance  in  violation  of  the  laws  of  a  State, 
a  military  commander  cannot  volunteer  to  intervene  with  his  command  without  incurring 
a  personal  responsibility  for  his  acts.  In  the  absence  of  the  requisite  orders  he  may  not 
even  march  or  array  his  command  for  the  purpose  of  exerting  a  moral  effect  or  any  effect 
in  terrorem;  such  a  demonstration,  indeed,  could  only  compromise  the  authority  of  the 
United  States,  while  insulting  the  sovereignty  of  the  State.  Ibid.,  164,  par.  7.  See, 
also.  General  Order.s,  No.  26,  Adjutant-General's  Office,  of  1894  (A.  li.,  487),  for  in- 
structions as  to  the  use  of  the  military  force  in  support  of  the  civil  authority. 


CHAPTER   XIX. 

THE   ARTICLES   OF   WAli. 

History  of  the  British  Articles.— In  tlie  early  history  of  military  institu- 
tions in  England,  from  wliicli,  as  has  been  seen,  our  own  military  policy  was 
in  great  part  derived,  military  law  existed  only  in  time  of  war.  When  war 
broke  out  troops  were  raised  as  occasion  required,  and  ordinances  for  their 
government,  or,  as  they  were  afterwards  called,  Articles  of  War,  were  issued 
by  the  crown,  with  the  advice  of  the  constable,  or  of  the  peers,  and  other 
experienced  persons;  or  were  enacted  by  the  commander-in-chief  in  pursu- 
ance of  an  authority  for  that  purpose  given  in  liis  commission  from  the 
crown.'  These  ordinances  or  articles,  however,  remained  in  force  only 
during  the  service  of  the  troops  for  whose  government  they  were  issued,  and 
ceased  to  operate  on  the  conclusion  of  peace.  Military  law  in  time  of 
peace  did  not  come  into  existence  in  statutory  form  till  the  passing  of  the 
first  Mutiny  Act  in  1689.* 

The  system  of  governing  troops  on  active  service  by  Articles  of  War 
issued  under  the  prerogative  power  of  the  crown,  whether  issned  by  the 
king  himself,  or  by  the  commander-in-chiefs  or  other  officers  holding  com- 
missions from  the  crown,  continued  from  the  time  of  the  Conquest  till  long 
after  the  passing  of  annual  Mutiny  Acts,'  and  did  not  actually  cease  till  the 
prerogative  power  of  issuing  such  articles  was  superseded,  in  1803,  by  a 
corresponding  statutory  power.*  Numerous  copies  of  these  Articles  are  in 
existence  prepared  and  issued  on  the  occasions  of  the  various  wars,  both 
foreign  and  domestic,  in  which  England  has  been  involved  from  time  to 
time  since  the  period  of  the  Xorman  Conquest. 

The  earliest  complete  code  seems  to  have  been  the  "  Statutes,  Ordi- 
nances, and  Customs  "  of  Richard  II.,  issued  by  him  to  his  army  in  the  ninth 
year  of  his  reign  (1385),  and  probably  on  the  occasion  of  the  war  with 
France.*  Domestic  dissensions  gave  occasion  for  the  orders  for  the  English 
army  promulgated  by  Henry  VII.  before  the  battle  of  Stoke;  *  and  in  the 

*  II  Grose,  Militaiy  Antiquities.  58  ;  see.  also.  Commission  in  Rvmer's  Fcedera. 
'  Sir  Henry  Tliriri*,  Manual  of  Military  Law,  pp.  7-18. 

*  Barweis  r.<.  Keppel.  2  Wilson's  Reports,  314. 
MaOeo.  III.,  ch.  20. 

» II.  Grose.  Military  Antiquities,  Rft.     This  code  contained  26  Articles.     The  author 
does  not  mention  the  much  more  elaborate  code  of  Henry  V. 

*  Ibid.,  10. 

339 


340  MILITARY  LAW. 

Great  Rebelliou  tlie  king  and  the  parliamentary  leaders  alike  governed 
their  armies  by  Articles  of  War.  On  the  side  of  the  crown.  Articles  or  ^ 
"  Ordinances  of  War,"  as  they  were  then  called,  were  established  by  the 
Earl  of  Northumberland  in  1G39  for  the  regulation  of  the  army  of 
Charles  I. ;  while  in  1()42  Lord  Essex,  the  leader  of  the  parliamentary  forces, 
under  authority  siveu  bv  an  ordinance  of  the  Lords  and  Commons,  put 
forth  Articles  of  War  which  were  almost  identical  in  language  with  the 
Koval  Articles.'  Articles  of  War  were  also  issued  by  Charles  IL  in  16G6,'' 
when  the  French  war  was  declared,  and  in  1G72,'  upon  the  outbreak  of  the 
Dutch  war;  and  similar  articles  Avere  issued  by  James  IL  in  1685  and  1686;  * 
the  former  on  the  occasion  of  Monmouth's  Rebellion. 

The  Duke  of  Albemarle's  Articles  (1666)  and  Prince  Rupert's  (1672) — 
more  particularly  the  latter — were  framed  on  the  model  of  those  of  the 
Earls  of  Essex  (1612)  and  Northumberland  (1610),  which  were  very  much 
alike  and  in  many  respects  resembled  those  of  the  Earl  of  Arundel  (1639) 
the  nearest  preceding  set  in  point  of  time.     Of  the  Earl  of  Arundel's  Code, 
twenty-three  articles  relate   to  subjects  treated  of  in  the  Code  of  (lustavus 
Adolphus  (1621);  "  and  the  language  of  the  two  codes  is  often  sufficiently 
alike  to  suggest  the  probability  that  Arundel's  Code  owed  some  of  its  pro- 
visions to  the  Code  of  Gustavus  Adoli)hus,'  possibly  to  some  extent  through 
the   British  Code  of  1625.      Indeed,   to  the  Code  of  Gustavus  Adolphus, 
through  intervening  codes,  we  may  perhaps  even  trace  some  of  our  own 
Articles  of  War  now  in  force.      At  least  it  contains  provisions  correspond- 
ing— in  some  cases  not  unsuggestively — Avith  the  following  Articles  of  our 
Code,  viz.:  Articles  17,  20,  21,  22,  26,  27,  38,  39,  11,  43,  46,  55,  56,  and 
62.' 

The  British  Articles  of  War,  although  they  remained  substantially 
unchanged  in  matters  essential  to  discipline,  were  frequently  modified  in 
respect  to  details;  and  new  editions  were  issued  from  time  to  time, 
especially  during  the  last  half  of  the  eighteenth  century,'  a  period  during 
which  great  wars  were  undertaken  and  large  acquisitions  of  territory  made 
throughout  the  world,  involving  as  a  consequence  the  employment  of  con- 
siderable militarv  forces  on  foreign  service.     In  evidence  of  this  seven  sets  of 


1  1  Clode,  Mil.  Fmces  of  the  Crown,  App.  VI  and  VII. 

«  Known  <'is  the  Duke  of  Abemarle's  Articles. 

■  Known  as  Prince  Rupert's  Articles.  u   j  •     tt  tp,-. 

*  Known  as  King  James's  Articles.    A  copy  of  this  code  may  be  consulted  is  II.  Wiii- 

throp.  App.  V.  pp.  26-37.  „.4:^„ 

■■'  This  in  itself  would  not,  however,  be  in  any  respect  conclusive  of  a  connection 

between  them,  because  military  codes  must  from  their  very  nature  relate  in  general 

to  the  same  matters  of  military  discipline.     J.  A.  G. 

6  For  a  complete  copy  of  this  important  code  see  II.  Winthrop,  Mil.  Law,  App.  Ill, 

pp.  8-2?.. 

'  Judge- Advocate  General  Lieber.  j  ,,^,,r 

«  Sets  of  Articles  were  issued  in  the  years  1766,  1769,  1771,  1772, 1  -73,  1774,  and  1  -75 


THE  ARTICLES   OF    WAR.  '^A\ 

Articles  were  issued  between  the  years  17GG  and  1775.  Of  these  the  Articles 
of  1774  were  probably  those  from  which  our  own  Articles  of  1775  and  1776 
were  obtained.' 


'  This  view  is  sustained  by  the  fact  that  in  two  places  our  Articles  of  1775  and  1776 
correspond  more  closel}'  wiih  tlie  British  Articles  of  1774  than  with  tliose  of  1765  Thus 
Article  V  of  our  code  of  1775  was  as  follows  : 

"Any  officer  or  soldier  who  shall  be,t,nu,  excite,  cause,  or  join  in  any  mutiny  or 
sedition  in  .the  regiment,  troop,  or  company  to  which  he  belongs,  or  in  any  other 
regiment,  troop,  or  company  of  the  Continental  forces,  either  by  laud  or  sea,  or  in  any 
part,  post,  deiachment,  or  guard,  on  any  pretense  whatsoever,  shall  suffer  such  punish- 
ment as  by  a  general  court  inartiul  shall  be  ordered." 

The  corresponding  Article  in  the  British  code  of  1774  was  as  follows  : 

"Any  Officer  or  Soldier  who  shall  begin,  excite,  cause,  or  join  in  any  Mutiny  or 
Sedition  in  the  Kegimenl,  Troop,  or  Company  to  which  he  belongs,  or  in  any  other 
IlegimeiU,  Troop,  or  Comi)any,  either  of  Our  Land  or  i\Iariue  Forces,  or  in  any  other 
Party,  Post.  Detachment,  or  Guard,  on  any  pretense  wiiatsoever,  shall  suffer  Death,  or 
such'other  punishment  as  by  a  Court-martial  shall  be  inflicted." 

Whereas  llie  Article  in  the  code  of  17G5  was  as  follows  : 

"  Any  Orticer  or  Soldier  who  shall  begin,  excite,  cause,  or  join  in  any  Mutiny  or 
Sedition  in  the  Troop,  Company,  or  Regiment  to  which  be  belongs,  or  in  any  other 
Troop  or  Company  in  Our  Service,  or  in  any  Party,  Post,  Detachment,  or  Guard,  on 
any  Pretense  whatsoever,  sliall  suffer  Death,  or  such  other  Punishment  as  by  a  Court- 
martial  sliall  be  inflicted." 

It  will  be  noticed  that  our  Article  much  more  nearly  corresponds  with  the  British 
Article  of  1774  than  with  that  of  1705. 

So  the  last  Article  of  our  code  of  1776  was  : 

"  All  crimes  not  capital,  and  all  dis:)rders  and  neglects  which  officers  and  soldiers 
may  be  guilty  of,  to  the  prejutlice  of  good  order  and  military  discipline,  though  not 
mentioned  in  the  above  articles  of  war,  are  to  be  taken  cognizance  of  by  a  general  or 
regimental  court-martial,  according  to  the  nature  and  degree  of  the  offense,  and  be 
]»unished  at  their  discretion  " 

The  last  Article  of  the  British  code  of  1774  was  : 

"  All  Crimes  not  Capital,  and  all  Disorders  and  Neglects  which  Officers  and  Soldiers 
may  be  guilty  of  to  the  Prejudice  of  good  Order  and  Military  Discipline,  though  not 
mentioned  in  the  above  Articles  of  War,  are  to  be  taken  Cogiuzance  of  by  a  General  or 
liegiinental  Court-mariial,  according  to  the  Nature  and  Degree  of  the  6ffen.se,  and  be 
]iuni-^tied  at  their  Discretion." 

Whereas  the  corresponding  Article  in  the  code  of  1765  was  : 

"  All  Crimes  not  Capital,  and  all  Disorders  or  Neglects,  which  Officers  and  Soldiers 
may  be  guilty  of,  to  the  Prejudice  of  good  Order  and  Military  Discipline,  though  not 
mentioned  in  the  above  Articles  of  War,  are  to  be  taken  Cognizance  of  by  a  Court- 
martial,  and  be  puidshed  at  their  Discretion."  In  the  latter  the  regimental  court-martial 
is  not  mentioned. 

Our  Articles  of  1775  correspond  more  nearly  with  the  Briti-sh  Articles  of  1774  tlian 
with  the  Massachusetts  Articles.* 

John  Adams,  the  chairman  of  the  Committee  of  Congress  charged  with  the  preparation 
of  the  Articles  of  1776,  remarks  in  his  autobigraphy,  uniler  date  of  August  13.  1776,  when 
the  draft  of  the  proposed  Articles  was  submitted  to  Congress :  "  The  British  Articles  of 
War  were  accordingly  repxjrted  and  discussed  in  Congress  by  me.  assisted  by  some 
others,  and  finally  carried.  They  laid  the  fouiulation"  of  a  discipline  which  "in  time 
brought  our  troops  to  a  capacity  of  contending  with  British  veterans  and  a  rivalry  with 
the  best  troops  of  France."  John  Adams,  Life  and  Autobioirraphy,  vol  iii  pn 
68,  69. 

The  Articles  of  June  30,  1775, f  were  repealed  and  replaced  by  those  of  September 
20,  1776,  and  so  remained  in  force  but  little  over  one  year.  For  this  reason  the  annota- 
tion of  the  Articles  relates  to  the  Code  of  September  20.  1776,  which,  save  for  the  s\ib- 
stitution  of  an  amended  code  of  court-martial  procedure  which  was  effected  by  the 
enactment  of  the  Resolution  of  May  31.  17S6,  continued  in  force  for  nearly  thirty  years, 
when  they  were  superseded  by  the  Articles  of  April  10,  1806.^ 

*  Note  by  JudRe-Advocate  General  Lieber.  For  a  reprint  of  the  Massachusetts  Articles,  see  II. 
Winttirop,  pp.  61-67. 

t  The  .\rticles  of  1775  will  be  found  in  American  Archives  (Fourth  Series),  vol.  ii.,  p.  1865,  and  at 
page  65,  Winthrop  Military  Law.  vol.  ii. 

X  2  Stat,  at  Large.  ',>.'i9;'2  Winthrop,  98-in. 


342  MILITARY  LAW. 

Origin  and  History  of  the  American  Articles  of  "War. — Tlie  Articles  of 
War  in  force  in  the  armies  of  the  United  States  were  derived  originally 
from  the  corresponding  British  Articles.  As  the  colonial  troops  had  served 
with  the  royal  forces  operating  in  America  during  the  Avars  immediately 
preceding  the  outbreak  of  the  War  of  the  Revolution,  and  while  so  serving 
liad  been  subject  to  the  British  Mutiny  Act  and  Articles  of  War,  they  became 
as  a  consequence  familiar  with  those  Articles;  and  as  their  scope  and  appli- 
cation were  fully  understood  they  were  adopted  with  some  necessary  modi- 
fications for  the  government  and  regulation  of  the  Revolutionary  Armies. 
When  the  Continental  Congress  met  in  Philadelphia  in  May,  1775,  and 
undertook  to  provide  an  army,  the  Mutiny  Act  and  Articles  of  War  then  in 
force  in  the  British  Army  were  resorted  to,  and  the  British  Code  of  1774  at 
that  time  in  actual  operation  was,  with  some  changes  and  omissions, 
enacted  for  tlie  government  of  the  colonial  forces  on  June  30,  1775.'  Addi- 
tions were  made  in  November,  1775,'  which  were  repealed,  however,  by  the 
Kesolution  of  September  30,  1776,'  and  new  Articles  adopted  which  were 
tliemselves  modified  in  some  particulars  by  a  Resolution  of  Congress  dated 
April  14,  1777.''  The  section  of  the  Articles  of  1770  relating  to  military 
tribunals  having  been  found  inadequate  and  to  some  extent  defective,  was 
repealed  and  replaced  by  a  new  section,  under  the  Resolution  of  Congress 
of  May  31,  1786.' 

The  Act  of  September  29,  1789,"  recognizing  the  existing  military 
establishment,  contained  a  provision  to  the  effect  that  the  troops  so  recog- 
nized should  "  be  governed  by  the  Rules  and  Articles  of  AYar  which  have 
been  established  by  the  United  States  in  Congress  assembled,  or  by  such 


'  I.  Journals  of  Congress,  90. 
2  Ibid. 

miMd.,uz.  .      ^^     w  ,•    . 

The  revision  of  the  Articles  of  1775  was  made  at  the  suggestion  of  Geu.  Washington, 
and  the  work  of  prei)arin<r  a  new  code  was  entrusted  to  a  committee  of  Congress  com- 
posed of  .lohn  Adams  and  Thomas  Jefferson.  The  modifications  suggested  by  General 
Washington  were  submitted  to  the  committee  in  his  behalf  by  Colonel  Tudor,  the 
Jud 26- Advocate  of  the  Army.  Adams,  to  whose  endeavors  the  adoption  of  the  Articles 
of  1776  is  in  great  part  due,  says  that  he  was  in  favor  of  adopting  the  British  Articles 
totuUm  verbis.  In  his  diary  uiidcir  date  of  September  20,  1776,  he  refers  to  the  revision 
as  "  the  system  which  he  persuaded  Jefferson  to  agree  with  him  in  reporting  to  Con- 
gress "  He  also  speaks  of  the  burden  of  advocating  the  passage  of  the  Articles  having 
l)ecn  "  thrown  upon  him,  Jefferson  having  never  spoken,  and,  such  was  the  opposition, 
and  so  undigested  were  the  notions  of  liberty  prevalent  among  the  majority  of  the 
members  most  zealously  attached  to  the  public  cause,  that  to  this  day  (January  7,  1805) 
I  scarcely  know  how  it  was  possible  that  these  Articles  could  have  been  carried."  John 
Adams,  Life  and  Autobiography,  vol.  iii.  pp.  83,  84. 

■*  III.  .lournals  of  Congress,  108. 

5  XI.  Journals  of  Congress,  107.  The  Articles  of  1776  were  also  amended,  in  re- 
spect to  the  bringing  of  provisions  into  camp,  tlie  redress  of  wrongs,  the  appointment  of 
general  courts-martial,  and  the  power  of  pardon  and  mitigation  of  sentences  imposed  by 
them,  by  the  Resolution  of  Congress  of  April  14,  1777  (III.  Journals  of  Congress,  108). 
Tlie  general  or  commander-in-chief  wms.  by  a  similar  Resolution  of  May  27,  1777.  (III. 
ibid..  166,)  given  power  to  pardon  or  mitigate  any  of  the  punishments  authorized  to  be 
inflicted  bv  the  Rules  and  Articles  of  War. 

«  1  U.  S.  Statutes  at  Large,  95. 


THE  ARTICLES  OF   WAR.  343 

Rules  and  Articles  of  "War  as  may  hereafter  by  Lw  be  established."  In 
IHOfJ  the  existing  Articles  of  War  were  re-enacted,'  the  arrangement  bv  sec- 
tions being  dispensed  with,  and  tlie  Articles  numbered  in  serial  order  from 
1  to  101,  and  these  Articles  continued  in  force  until  the  enactment  of  the 
existing  Articles  in  1874,' 

THE    ARTICLES    OF    WAR. 

Section  1:)42.  The  Armies  of  the  United  States  shall  be  governed  by 
the  following  rules  and  articles.  The  word  officer,  as  used  therein,  shall 
be  understood  to  designate  commissioned  officers;  the  word  soldier  shall  be 
understood  to  include  non-commissioned  officers,  musicians,  artificers,  and 
privates,  and  other  enlisted  men,  and  the  convictions  mentioned  therein 
shall  be  understood  to  be  convictions  by  court-martial. 

Rules  of  Interpretation. — In  addition  to  the  statutory  rule  above  cited,  it 
should  be  borne  in  mind  that  in  applying  the  Articles  of  War  to  jiarticular 
cases  the  well-established  rule  of  interpretation  of  criminal  statutes  should 
be  applied,  and  a  case  should  not  be  treated  as  Avithin  the  penal  provisions 
of  an  Article  unless  it  is  quite  clearly  included  by  the  words  of  description 
employed.^ 

It  is  well  settled  that  the  word  "  may,"  in  a  statute  conferring  power 
upon  a  public  officer,  is  to  be  construed  as  equivalent  to  "must"  or 
"  shall  "  where  the  enactment  imposes  a  public  duty  or  makes  provision  for 
the  benefit  of  individuals  wiiose  rights  cannot  be  effectuated  without  the 
exercise  of  the  power.*  In  the  58th  Article,  however,  the  opposite  rule 
applies,  and  the  word  "  shall,"  as  used  in  the  clause  "  shall  be  punishable," 
is  construed  as  equivalent  to  "  may."  ' 

Limitations  upon  Punishment. — In  addition  to  the  restrictions  upon  the 
power  to  punish  which  are  embodied  in  the  Articles  themselves,  it  is  pro- 

'  2  Statutes  at  Large,  259.  Although  the  Articles  of  1776  stood  iu  considerable  ueed 
of  moditiciition  and  revision,  no  sucli  revision  was  authorized  until  1806,  uearlv  thirty 
3'ears  after  their  original  adoption.  Hamilton,  in  a  letter  to  Secretary  Mclleury,  speaks 
of  their  requiring  amendment  "  in  many  particulars."  He  invites  special  alteulion  to  the 
obscurity  which  envelops  the  provisions  of  the  existing  Articles  respecting  tiie  power  to 
appoint  general  courts-martial,  and  suggests  that  the  President  be  given  '  •  a  discretionary 
authority  to  empower  other  otBcers  than  those  described  iu  the  Articles  of  War  to  appoint 
courts-martial,  under  such  conditions  and  with  such  limitations  as  he  shall  esteem 
advisable."  Hamilton  to  McHenry,  December  1799.  V.  Hamilton's  Works.  o92.  See,  also, 
report  of  the  Secretary  of  War  of  January  5,  1800,  transmitted  to  Congress  by  President 
John  Adams  on  January  13,  1800.     American  State  Papers,  Mil.  Affairs,  vol.  i.  p    133 

»  Act  of  June  20,  1874  (18  Stat,  at  Large,  113). 

*  Dig.  J.  A.  Gen  ,  711,  par.  1.  "  Crinunal  statutes  are  inelastic,  and  cannot  be  made 
to  embrace  cases  plainly  without  the  letter  though  within  the  reason  and  policy  of  tlie 
law."     State  vs.  Lovell,  23  Iowa.  304. 

*  Dig.  J.  A.  Gen..  712,  par.  2.  See  Minor  vs.  Mechs.  Bk.,  1  Peters,  46  ;  Supervisors 
vs.  United  States,  4  Wallace,  435,  and  cases  cited  ;  also  Fowler  vs.  Pirkins,  77  Ills..  271  ; 
Kans.  P.  R.  R.  Co.  vs.  Reynolds,  8  Kans. ,  628;  People  rs.  Conirs.  of  Buffalo  Co  4 
Neb.,  150. 

»  Dig.  J.  A.  Gen.,  712,  par.  2,  note. 


344  MILirABY  LAW. 

vided  "  that  whenever,  by  auy  of  the  Articles  of  War  for  the  governnieut 
of  the  Army,  the  punishment  on  conviction  of  any  military  offense  is  left  to 
the  discretion  of  the  conrt-martial,  the  punishment  therefor  shall  not  in 
time  of  peace  be  in  excess  of  a  limit  which  the  President  may  prescribe,' 

Article  1.  Every  officer  noio  in  the  Ar^ny  of  the  United  States  shall, 
luithin  six  months  from  the  passing  of  this  Act,  and  every  officer  hereafter 
appointed  shall,  before  he  enters  upon  the  dnties  of  his  office,  subscribe  these 
Mules  and  Articles. 

This  provision  appears  for  the  first  time  as  Article  1,  Section  1,  of  the 
Articles  of  ITTG,  and  is  there  restricted  in  its  application  to  commissioned 
officers  "  who  shall  be  retained  in  the  service  of  the  United  States'';  the 
term  "retained"  as  here  used  being  equivalent  to  "accepted"  or 
"received  into"  the  service  of  the  United  States  as  distinguished  from 
that  of  the  several  States.  The  requirement  appears  as  No.  1  of  the  Articles 
of  1800,  but  prescribes  no  form  of  certificate  to  be  used,  nor  does  it  provide 
for  the  verification  of  the  act  by  a  civil  magistrate  or  other  public  officer. 
As  the  Articles  of  War  apply  expressly  to  commissioned  officers  and  enlisted 
men,  and  as  military  persons  equally  with  civilians  are  presumed  to  be 
familiar  with  them,  as  a  part  of  the  law  of  the  land,  it  is  not  easy  to  see  what 
additional  sanction  is  conferred  by  the  formal  recognition  of  their  obligatory 
force  which  is  implied  by  such  signature.  The  provision,  which  is  directory 
in  character,  operates,  however,  to  strengthen  the  presumption  of  knowledge 
above  referred  to,  and  gives  additional  force  to  the  requirement  of  the  first 
or  enacting  clause  of  Section  1342,  Revised  Statutes. 

Article  2.  These  rules  and  articles  shall  be  read  to  every  enlisted  maih 
at  the  time  of,  or  within  six  days  after,  his  enlistment,  and  he  shall 
thereupon  tah'  an  oath  or  affirmation  in  tlie  following  form :  "/,  A.  B.,  do 
solemnly  swear  {or  affirm)  that  I  loill  bear  true  faith  and  allegiance  to  the 
United  States  of  America ;  that  I  will  serve  them  honestly  aud  faithfully 
against  all  their  oiemies  whomsoever  ;  and  that  I  will  obey  the  orders  of  the 
President  of  the  United  States,  and  the  orders  of  the  officers  appointed  over 
me,  according  to  the  Rules  and  Articles  of  War.""  This  oath  may  be  taken 
before  any  commissioned  officer  of  the  Army. 

This  provision  appears  as  Article  6  of  the  Prince  Rupert  Code;  as  Art.  1, 
Sec.  3,  of  the  British  Code  of  1774;  as  Art.  1,  Sec.  3,  of  the  Articles  of 
1776 ;  and  as  No.  10  of  those  of  1806.     The  oath  of  enlistment,  which  in  its 


'  Act  of  September  27,  1890  (27  Stat,  at  Lars^e,  491).  This  statute  replaced  a  simi- 
lar but  less  comprehensive  enactment  of  October  1,  1890  (26  Stat,  at  Large,  648), 
which  authorized  the  President  to  "prescribe  specific  penalties  for  such  minor  offenses 
as  are  now  brought  before  garrison  and  resrimental  courts-martial." 

Under  the  authority  conferred  by  the  Act  of  September  27,  1890,  above  cited,  two 
Executive  orders  have  been  issued  prescribing  limits  of  punishment  for  offenses  to 
which  specific  penalties  are  not  attached  in  the  Articles  of  War.  See  General  Order 
No.  21,  A.  G.  O.  of  1891,  as  amended  by  the  Executive  order  of  March  20,  1895  (Man- 
ual for  Courts-martial,  pp.  53-63). 


THE  ARTICLES   OF   WAR.  345 

original  form  was  one  of  fealty  and  allegiance  to  the  sovereign,  was  admin- 
istered by  an  officer  of  the  Army  until  109-4,  when  by  Act  of  Parliament '  it 
was  required  to  be  administered  by  a  civil  magistrate;  this  to  prevent 
impressments  into  the  military  service,  and  to  protect  the  recruit  from  being 
entrapped  into  a  serious  contractual  engagement  without  understanding  its 
nature  or  the  serious  character  of  tlie  undertaking.'  This  statute,  which 
was  enforced  by  appropriate  penalties,  continued  in  force  until  lO'JT,  when 
it  failed  of  re-enactment.  The  practice  of  attesting  the  engagement  before 
a  civil  magistrate  continued,  however,  and  was  recognized  in  the  Mutiny 
Act  of  1735;'  it  still  continues  in  force.'  The  practice  which  existed  in 
many  parts  of  England  of  concluding  a  bargain  by  giving  some  earnest  of  it 
was  adopted,  in  the  case  of  eidistment,  by  the  giving  of  a  shilling,  the 
acceptance  of  which  rendered  the  man  for  some  purposes  a  soldier.  Under 
the  existing  Army  Act  the  acceptance  of  the  shilling  has  no  such  effect.' 
The  attestation  is  still  required  to  be  performed  by  a  civil  magistrate;  but 
the  Articles  of  War  as  such  having  ceased  to  exist  (being  merged  in  the 
Army  Act  of  1881),  are  no  longer  required  to  be  read  to  recruits.  The 
conditions  of  service,  however,  are  required  to  be  explained  to  the  recruit 
prior  to  his  enlistment.  The  oath  required  in  the  British  service  is  one 
primarily  of  allegiance  and  fealty  to  the  sovereign,  and  the  statute  requir- 
ing its  administration  is  regarded  as  being  directory  in  character."  The 
enlistment  oath  is  not  held  to  create  a  change  of  status,  as  is  now  the  case 
in  the  United  States  service,'  and  is  imposed  to  give  a  greater  sanction  to 
che  discharge  of  the  soldier's  duty  ' 

The  form  of  oath  in  use  in  the  British  Army,  as  embodied  in  the  British 
Code  of  1774,  was  with  some  necessary  modifications  adopted  by  the  Con- 
gress in  the  Articles  of  1776;  the  obligation  being  to  "  be  true  to  the  United 
States  of  America,  and  to  serve  them  honestly  and  faithfully  against  all  their 
enemies  or  opposers  whatsoever,"  and  "  to  observe  and  obey  the  orders  of 
the  Continental  Congress,  and  the  orders  of  the  generals  and  officers  set  over 
him  "  by  them.  The  English  practice  of  requiring  the  oath  of  enlistment  to 
be  administered  by  a  civil  magistrate  was  incorporated  in  the  Articles  of  177G, 
and  continued  in  force  until  August  3,  1801,'  when  by  enactment  of  Congress 
the  power  to  administer  this  oath  was  conferred  upon  all  officers  of  the  Army. 
The  clause  requiring  obedience  to  be  rendered  to  the  orders  of  the  officers 

'  5  !\iid  6  Will,  and  M:irv,  cli.  15,  sec.  2. 
-  Manual  Mil.  Law,  ','54' 
»  8  Geo.  II  ,  rh.  2. 

*  M;uiiial  Mil.  Law,  254. 
5  Ibid. 

•  I.  (lode.  Military  Forces,  21  ;   Kins;  vs.   Witmoham,  2  Add.  and  M.,  650.     See, 
also,  Repori  of  Royal  C'ommissioners  on  Oaths,  1867. 

'  In  re  Grimley.  137  U.  S.,  147. 

"  r.  Clode,  Military  Forces.  21. 

»  Sec.  il.  Act  of  Aug.  :j,  1861  (12  Stat,  at  Large,  289). 


346  MILITARY  LAW. 

appointed  "  in  accordance  with  the  rales  and  Articles  for  the  government  of 
the  armies  of  the  United  States  "  was  added  to  the  oath  by  the  Act  of  April 
10,  1806/ 

Akticle  3.  Every  officer  ivlio  knowingly  c?iUsfs  or  musters  into  the 
military  service  any  minor  over  the  age  of  sixteen  years  icithoid  the  ivritten 
consent  of  his  parents  or  guardians,  or  any  minor  under  the  age  of  sixteen 
yeai's,  or  any  insane  or  intoxicated  persons,  or  any  deserter  from  the  military 
or  naval  service  of  the  United  States,  or  any  person  who  has  been  convicted 
of  any  infamous  criminal  offense  shall  upon  conviction  be  dismissed  from 
the  service,  or  suffer  such  other  punishmoit  as  a  court-inartial  may  direct. 

This  provision,  when  taken  in  connection  witli  Article  2,  supra,  regu- 
lates in  part  the  subject  of  enlistments  in  the  Army  of  the  United  States. 
It  first  appeared  in  statutory  form  as  Section  (>  of  the  Act  of  March  5, 
1833,"  and  was  incorporated  without  change  as  Article  3  in  the  revision  of 
1874. 

Prohibited  Enlistments. — In  addition  to  the  restrictions  imposed  by  the 
above  Article  the  following  requirements  of  law  must  be  observed  in  respect 
to  enlistments:  "  Xo  minor  under  the  age  of  sixteen  years,  no  insane  or 
intoxicated  person,  no  deserter  from  the  military  service  of  the  United 
States,  and  no  person  who  has  been  convicted  of  a  felony  shall  be  enlisted  or 
mustered  into  the  military  service."  ' 

"  In  time  of  peace  no  person  (except  an  Indian)  who  is  not  a  citizen  of 
the  United  States,  or  who  has  not  made  legal  declaration  of  his  intention  to 
become  a  citizen  of  the  United  States,  or  who  cannot  speak,  read,  and  write 
the  English  language,  or  who  is  over  thirty  years  of  age,  shall  be  enlisted 
for  the  first  enlistment  in  the  Army."  * 

Enlistment  of  Minors;  Consent  of  Parent  or  Guardian. — It  is  also  pro- 
vided by  law  that  "  no  person  under  the  age  of  twenty-one  years  shall  be 
enlisted  or  mustered  into  the  military  service  of  the  United  States  without 
the  written  consent  of  his  parents  or  guardians:  provided,  that  such  minor 
has  such  parents  or  guardians  entitled  to  his  custody  and  control."  '' 

'  2  Stat,  at  Large,  259. 

*  4  Stat,  at  Large,  647. 

-  Section  1118,  Revised  Statutes. 

4  Section  2,  Act  of  August  1.  1894  (28  Stat,  at  Large,  215). 

'  Sec.  1117,  K.  S.  Sees.  1116-1118,  Rev.  Sts. ,  have  always  been  regarded  by  the  War 
Department  as  directory  only,  and  not  as  necessarily  making  void  such  enlistments,  but 
as  rendering  them  voidable  merely,  at  the  option  of  the  Government,  -which  may  waive 
in  its  discretion  the  objections  involved.  A  person  enli.sted  in  derogation  of  these 
provisions  may  still  be  held  to  service  with  the  same  legality  as  any  other  soldier;  and  if 
arraigned  for  desertion  or  other  military  offense,  a  i)lea  that  his  enlistment  was  void 
under  these  statutes  and  that  he  could  not  legally  be  subjected  to  the  military  jurisdic- 
tion would  not  be  sustained.  Dig.  J.  A.  Gen.,  391.  par.  17.    See,  also,  ibid.,  390,  par.  16. 

A  recruiting  officer  would  not  be  authorized  (under  Sec.  1118,  Rev.  Sts.)  to  enlist  a 
person  known  lo  him  to  have  been  convicted  of  felony,  although  such  person  should 
produce  a  pardon.     Pardon  would  not  remove  this  ineligibility.     Ibid.,  par.  18. 

A  deserter  who  enlists  and  afterwards  again  deserts  cannot,  on  being  brought  to  trial 
for  the  second  offense,  defend  on  the  ground  that  his  enlistment  was  void,  and  that  he  is 


THE  ARTICLES  OF   MAIL  347 

Sections  lllG,  1117,  and  1118,  Kevised  Statutes,  providing  that 
deserters,  convicted  felons,  insane  or  intoxicated  persons,  ano  certain 
minors  shall  not  he  enlisted  are  regarded  as  directory  only,  and  not  as  mak- 
ing necessarily  void  such  enlistments,  hut  as  rendering  them  voidahle  merelv, 
at  the  oi)tion  of  the  Government.  In  cases  of  such  enlistments,  e,\ce]»t  of 
course  where  the  party  by  reason  of  mental  derangement  or  drunkenness 
was  without  the  legal  capacity  to  contract,  the  Government  may  elect  to  hold 
the  soldier  to  service,  subject  to  any  application  for  discharge  which  may  be 
addressed  by  himself  or  his  parent,  etc.,  either  to  the  Secretary  of  War  or 
to  a  United  States  court.' 


not  tlierefore  anienable  to  trial.     A  plea  or  defense  to  this  effect  should  not  be  sustained 
by  the  court.     D\g.  J.  A.  Gen.,  iJ85,  par.  3. 

The  enlistment  in  our  army  of  a  deserter  from  the  Navy  is  not  prohibited  by  any 
statute.  Where,  therefore,  such  an  enlistment  iiad  been  (unadvi.sedly)  made,  held  that 
— although  the  proper  disposition  of  the  party  would  probably  be  to  discharge  him  and 
turn  him  over  to  the  naval  authorities — the  contract  was  certainly  valid  in  law.     Ibid. 

There  is  no  law  or  regulation  affecting  the  vaiitlily  of  an  enlislnieni  made  on  a  Sun- 
day.    Ibid.,  387.  par.  8.     See,  also,  Wolton  vs.  Gavin,  16  Q.  B..  48. 

'  The  jirovision  of  Section  1117,  Kevised  Statutes,  that  "  no  person  under  the  age  of 
twenty-one  years  shall  be  enlisted  or  mustered  into  the  military  service  of  the  United 
States  without  the  written  consent  of  his  parents  or  guardians,"  is  for  the  benefit  of  the 
parent  or  guardian,  and  gives  no  privilege  to  the  minor,  whose  contract  of  enlistment  is 
good  so  far  as  he  is  concerned.  He  cannot  by  his  own  act  relieve  himself  from  his 
obligations  as  a  soldier  or  his  liability  to  military  control.  In  re  Morrissey,  137  U.  S., 
157  ;  in  re  Grimley,  ibid.,  1147. 

The  enlistment  contract  of  a  minor  is  void  when  the  recruit  is  under  sixteen,  with  or 
without  the  consent  of  the  parent.  In  re  Lawler,  40  ¥.  K.,  233.  It  is  not  void,  but 
voidable  only,  as  to  minors  between  sixteen  and  twenty-one.  U.  S.  vs.  Morrissey,  137 
U.  S.,  157.  It  is  not  voidable  at  the  instance  of  the  minor.  Ibid.  It  is  voidable  at  the 
instance  of  the  parent  or  guardian.  Com.  vs.  Blake,  8  Phil.,  523  ;  Turner  vs.  Wrisrht,  5 
ibid.,  296;  Menges  rs.  Camac,  1  Serg.  «&  R,  87;  Ilendensou  vs.  Wright,  ibid..  299;  Seav'ey 
vs.  Seymour,  3  Cliff.,  439  ;  In  re  Cosenovv,  37  F.  II.,  668 ;  In  re  Hearn,  32  ibid.,  141  ;  In 
re  Davison,  21  ibid.,  618  ;  U.  S.  vs.  Wagner,  24  ibid.,  135  ;  In  re  Dohrendorf,  40  F.K., 
148  ;  In  re  Spencer,  ibid.,  149  ;  In  re  Lawler,  ibid.,  233  ;  In  re  Wall,  8  ibid.,  85. 

A  minor's  contract  of  enlistment  is  voidable,  not  void,  and  is  not  so  voidable  at  the 
instance  of  the  minor.     If  after  enlistment  he  commits  an  offense,  is  actuallv  arrested, 
and  in  course  of  trial  before  the  contract  is  duly  avoided,  he  may  be  tried  and  punished! 
In  re  Wall,  8  Fed.  Rep.,  85.      See,   also.  Barrett  vs.  Hopkins,  7  ibid.,  312  ;   Dig.  J   A 
Gen  ,  389,  par   13. 

Where  api>lication  is  made  for  the  discharge  of  jsoldiers  from  enlistment  on  the 
ground  of  miuorily.  the  Secretary  of  War  is  aulborized  to  receive  evidence  upon  and 
determine  the  (piestion  of  actual  age,  though  the  party  upon  enlistment  may  have  sworn 
or  declared  in  writing  that  he  was  of  full  age  ;  the  provision  of  the  Act  of  February  13. 
1862,  (12  Stat,  at  Large,  339,)  that  the  statement  as  to  age  in  the  oath  of  enlistment"shali 
be  conclusive,  being  no  longer  in  force.  Dig.  .J.  A.'  Gen.,  386.  par.  4.  Under  the 
existing  law,  however,  the  authority  to  discharge  soldiers  on  account  of  minority,  etc 
is  not  reserved  to  the  Secretary  of  War  alone,  but  the  United  States  courts  are  em- 
powered  to  inquire  into  the  validity  of  enlistments  on  habeas  corpus,  and  thereupon  to 
discharge  enlisted  persons  in  proper  cases.  Ex  parte  Schmeid,  1  Dillon.  587.  In  re 
McDonald,  Lowell,  106;  McConologues  Case,  107  Mass..  1.^)4.  This  power  cannot 
legally  be  exercised  by  a  State  court.     Tarble's  case,  13  Wallace,  397.     Ibid. 

Where  a  soldier,  otherwise  subject  to  be  discharged  on  account  of  minority,  is  held 
in  arrest  prior  to  trial,  or  under  sentence,  as  a  deserter,  an  application  for  his  discharge 
by  a  parent  entitled  to  claim  his  services  (whether  addressed  to  the  Secretary  I'f  War 
or  to  a  U.  S.  court)  will  not  be  favorably  cntertaitied.*  In  such  a  case  the  interest  of 
the  public  in  the  administration  of  justice  is  i>aramount  to  the  right  of  the  iiareut.'aiid 
requires  that  the  party  sliall  abide  the  legal  consequences  of  his  military   offense  before 


mat 


*  CoMiinoi, wealth  rN;(iaml)Ie,  11  Sorer.  &  Rawje.  <n:  als..  MoCnnologue's  Case,  107  Ma««;     170-    In 
Iter  of  Beswick,  25  How.  Pr.,  149;  Ex  parte  .\ii(lersoii.  16  Iowa,  599.  -    .         • 


348  MILITARY  LAW. 

Enlistments,  How  Made. — Enlistments  and  re-enlistments  in  the  Army 
are  regulated  in  part  by  statute  and  in  part  by  regulations  framed  in  accord- 
ance therewith.  "  Kecruits  enlisting  in  the  Army  must  be  effective  and 
able-bodied  men,  and  between  the  ages  of  sixteen  and  thirty  years  at  the 
time  of  their  enlistment.  This  limitation  as  to  age  shall  not  apply  to 
soldiers  re-enlisting."  ' 

Anv  male  citizen  of  the  United  States,  or  person  who  has  legally  declared 
his  intention  to  become  a  citizen,  if  above  the  age  of  twenty-one  and  under 
the  age  of  thirty  years,  able-bodied,  free  from  disease,  of  good  character  and 
temperate  habits,  may  be  enlisted  under  the  restrictions  contained  in  this 
Article.     In  regard  to  age  or  citizenship  this  regulation  shall  not  apply  to 

the  questioa  of  the  right  of  discharge  be  passed  upon.  And  similarly  held  in  a  case  of 
a  soldier  who,  at  the  lime  of  the  application  for  his  discharge  on  account  of  minority, 
was  under  sentence  on  conviction  of  embezzlement.     Dig.  J.  A.  Gen.,  387,   par.  6. 

As  has  repeatedly  been  held,  even  a  U.  S.  court  has  no  jurisdiction  to  discharge  a 
minor  enlisted  in  contravention  of  Sec.  1117,  Rev.  Sts.,  who,  at  the  date  of  the  initia- 
tion of  the  proceedings,  is  held  awaiting  trial  for  desertion  by  a  court-  martial,  or  is 
under  sentence  of  tlie  same.*     Ibid.,  391,  par.  19. 

By  the  practice  of  the  War  Department,  the  age  of  an  alleged  minor  is  generally 
required  to  be  shown  by  the  affidavits  of  both  parents  if  living,  or  by  the  affidavit  of  the 
surviving  parent  or  guardian,  supported  by  the  affidavits  of  at  least  two  other  respectable 
oersons  cognizant  of  the  fact,  or  by  an  officially  authenticated  record  of  a  church  or 
court.  If  praciicable  the  affidavits  should  be  accompanied  by  t'ne  certificate  of  a  jtidge 
of  a  U.  S.  or  State  court  acquainted  vi\\h  the  parties  and  vouching  for  the  truth  of  the 
representations  made.     Ibid.,  par.  20. 

It  is  well  estal)lished  that  a  soldier  cannot  himself  avoid  his  contract  of  enlistment  on 
the  ground  of  minority,  and  abandon  at  pleasure  the  military  service.  His  release  on 
this  ground  can  be  obtained  only  on  application  of  a  parent  or  guardian  entitled  to  his 
services,  and  without  whose  con.sent  he  enlisted. f  The  application  of  the  parent, 
whether  made  to  the  Secretary  of  War,  or  on  habeas  corpus,  to  a  U.  S.  court,  must  be 
made  before  the  soldier  attains  his  majority  and  ratifies  his  contract. :{:     ibid.,  389,  par. 

12. 

A  minor  cannot  as^inne  to  discharge  himself  on  the  ground  that  his  enlistment  was 
illegal  :  he  would  attempt  it  at  tlx;  risk  of  being  treated  as  a  deserter.    Ibid.,  387,  par.  5. 

The  enlistment  of  a  minor  without  consent  is  not  void,  but  is  voidable  merely,  and 
only  by  the  United  States— which,  on  the  fact  of  minority,  etc  ,  becoming  known,  may 
waive  the  objection  and  adopt  and  continue  the  enlistment,  or  terminate  it  at  pleasure. 
If  the  minor  (^ie.seri.?.  he  cannot  take  advantage  of  his  own  wrong  and  plead  in  defen.se 
on  trial  that  the  enlistment  was  void.i^  Nor  can  he  do  so  if  on  enlistment  he  purpo.sely 
concealed  his  age  and  the  enlistment  was  therefore  fraudulent.  That  a  soldier  was  a 
minor  at  enlistment  does  not  affect  his  capacity  to  commit  a  military  oft'ense  or  the 
jurisdiction  over  him  of  a  court-martial.  Where  a  minor  deserts  he  mu.st  abide,  like 
any  other  soldier,  the  con.«equence  of  his  criminal  act,  viz.,  arrest,  trial,  and  sentence  if 
convicted.  And  till  the  charge  of  desertion  has  been  disposed  of,  or  till  the  sentence 
has  been  undergone,  not  even  his  parent  can  procure  his  discharge.  The  right  of  the 
United  States  to  liold  him  to  the  penalty  of  the  infraction  of  his  contract  and  of  mili- 
tary discipline  is  paramount  to  the  right  of  a  parent  to  his  services,  and  the  parent  can- 
not procure  his  release  on  habeas  corpus  wliile  lield  in  military  custody  awaiting  trial 
or  u'lder  .sentence  on  conviction  of  desertion  or  other  military  offense.  The  law  re- 
(piiring  consent  of  parent  or  guardian  applies  to  an  Indian  minor  enlisting  in  the  Army. 
An  Indian  agent  is  not  the  ouardi/m  of  an  Indian  under  his  charge,  within  the  meaning 
of  pars.  825  and  826,  A.   R,,   1895.     Ibid.,  par.   13. 

'  Section  1116,  Revised  Statutes. 


*  In  re  Davison,  'l  Fed.  Rep.,  618;  In  re  Zimmerman,  30  ibid.,  176;  In  re  Cosenow,  37  ibid.,  668;  In 
re  Kaufman,  41  ibid.,  876. 

t  In  re  Hearn.  32  Fed.  Rep..  148;  U.  S.  vs.  Gitihon.  24  ibid.,  13.5;  In  re  Morrissey,  137  U.  S.,  157. 
X  In  re  I>ohren(lorf,  40  Fed.  Rep.,  148;  In  re  Spencer,  id.,  149. 
§  In  re  Morrissey,  137  U.  S.,  157. 


THE  ARTICLES  OF   WAR.  349 

soldiers  who  have  served  lionestly  and  faithfully  a  previous  enlistment  in  tlic 
Army. ' 

Enlistment  is  a  contract;  but  it  is  one  of  those  contracts  wliich  change 
the  status,  and  where  that  is  changed  no  breach  of  contract  destroys  the  new 
status  or  relieves  from  the  ol)ligations  which  its  existence  imposes.  *  *  *  By 
eidistment  the  citizen  becomes  a  soldier.  Ilis  relations  to  tlie  State  and  the 
public  are  changed,  lie  acquires  a  new  status,  with  correlative  rights  and 
duties;  and  although  he  may  violate  his  contract  obligations,  his  status  as  a 
soldier  is  unchanged,  lie  cannot  of  his  own  volition  throw  off  the  garments 
he  has  once  put  on,  nor  can  he,  the  State  not  objecting,  renounce  his  rela- 
tions and  destroy  his  status  on  the  plea  that  if  lie  had  disclosed  truthfullv 
the  facts  the  other  party,  the  State,  would  not  have  entered  into  the  new 
relations  with  him  or  permitted  him  to  change  his  status.' 

'  Panigraph  823,  Army  Regulations  of  1895.  See,  also,  for  other  provisious  of  reg- 
ulations in  respect  to  eiilislmeiUs.  paragraphs  823-840,  A.  K.  1895. 

'  In  re  Griiuley,  137  U.  S.,  147,  lot).  For  the  full  text  of  this  decision  see  G.  O.  141) 
A.  G.  O..  1890. 

Our  law  not  defining  enlistment,  nor  designating  what  proceeding  or  proceedings  shall 
or  may  constitute  an  enlistment,  it  may  be  said  in  general,  that  any  actor  acts  which  indi- 
cate an  undertaking,  on  the  part  of  a  person  legally  competent  to  do  so,  to  render  military 
service  to  the  United  Stales  for  the  term  required  by  existing  law,  and  an  acceptance  of  such- 
service  on  the  part  of  the  Government,  may  ordinnrily  be  regarded  as  legal  evidence  of  a 
c'nnlract  of  enlistment  between  the  parties,  and  as  equivalent  to  a  formal  agreement  where 
no  such  agreement  has  been  had.  The  Fori3'-seventh  Article  of  War  piactically  makes 
the  receipt  of  pay  by  a  party  as  a  soldier  evidence  of  an  enlistment  on  liis  part,  estoppin" 
iiim  from  denying  his  military  Ciipaeity  when  sought  to  be  made  amenable  as  a  deserter. 
The  continued  rendering  of  service  which  is  accepted  may  constitute  an  enlistment.  But 
enlistments  in  our  Army  are  now  almost  invariably  evidenced  by  a  formal  writing  and 
engagement  under  oath.  (Dig.  .J.  A.  Gen.,  384.  par.  1.)  See,  also,  In  re  Grimhy,  137 
U.  S.,  147;  In  re  McDonald,  1  Lowell,  100;  Tyler  ts.  Pomeroy,  8  Allen  (Mass.),  480. 

In  addition  to  what  has  been  said  of  the  imjiortance  of  the  oath  of  enlistment,  it  is 
important  that  the  oath  should  not  be  omitted,  for  the  reason  that  the  oath,  as  taken  and 
subscribed  by  the  party,  constitutes  the  regular,  and  in  some  cases  the  only  legal,  writ- 
ten evidence  that  the  personal  act  of  enlisting  has  been  completed  by  him.  Dig.  J.  A. 
Gen.,  19,  par.  1. 

A  mere  non-compliance  with  an  Army  reirulation  in  making  an  enlistment  does  not 
per  se  affect  the  validity  of  the  contract.  Thus  the  fact  that  the  recruiting  officer  has 
knowingly  enlisted  a  married  man,  in  derogation  of  par.  914  of  the  Regulations  (of  1889). 
or  that  a  married  man  has  jirocured  himself  to  be  enlisted  under  a  representation  that  he 
was  unmarried,  does  not  affect  the  validity  of  the  eidistment.  In  such  a  case  the  Presi- 
dent or  Secretary  of  War  may,  in  his  discretion,  forthwitli  discharge  the  soldier  under 
the  Fourth  Article  of  War,  or  may  hold  him  regularly  to  service  for  the  term  for  which 
lie  has  enlisted.     Dig.  J.  A.  Gen.,  385,  par.  2. 

The  statement  in  retrard  to  age,  incorporated  in  the  printed  blank  wliich  contains  the 
form  of  oath  prescribed  by  this  Article,  is  no  part  whatever  of  the  lecal  oath.  Ibid.,  19. 
par.  2. 

While  a  contract  of  enlistment  may  at  any  time  be  terminated  by  the  Secretary  of 
War  by  a  summary  discharge  of  the  soldier  under  the  authority  of  the  Fourth  Article,  the 
Executive  is  not  empowered  to  modify  the  material  cor.ditions  of  such  contract  while  it 
remains  in  force.*  Congress,  however  in  the  exercise  of  its  power  "  to  raise  and  support 
armies."  and  "  to  make  rules  for  the  government  and  regulation  of  the  land  forces,"  is 
authorized  to  increase  or  diminish  the  compensation  of  a  soldier  during  his  term  of 
enli.stment.  Thus  held  that  a  contract  of  enlistment  was  not  violated  on  the  part  of  the 
United  States  by  the  reduction  by  Act  of  Congress,  pending  his  enlistment,  of  the  pay 
of  a  soldier  from  sixteen  to  thirteen  ilollars  i)er  month. f     Ibid.,  387,  par.  9. 

Held,  in  view  of  the  ruling  of  the  courts  ou  the  subject,  that  certain  volunter  soldiers 

*  1.1  Opin.  Att.-Gen,.  ?6C.    S.»t^  la^t  paragraph  of  notes  on  page  350. 
\  Dig.  J.  A.  Geu.,  38S,  par.  9,  note  i. 


350  MILITARY  LAW. 

Although  the  statutes  do  not  expressly  prescribe  the  method  of  enlist- 
ment, the  requirement  of  the  Article  that  "  these  rules  and  Articles  shall  be 
read  to  every  enlisted  man  at  the  time  of,  or  within  six  days  after,  his 
enlistment,  and  he  shall  thereupon^  that  is,  at  his  enlistment,  take  an  oath 
or  affirmation  in  the  following  form,  etc.,  make  the  oath  so  taken  not  only 
an  essential  part  of  the  enlistment,  but  the  final  act  on  the  jiart  of  the 
recruit  which  operates  to  complete  and  ratify  the  enlistment  contract. 
Indeed,  it  has  been  held  by  the  Supreme  Court  of  the  United  States  in  a 
recent  case  that  "  the  taking  of  the  oath  of  allegiance  is  the  pivotal  fact 
which  changes  the  status  from  that  of  the  civilian  to  that  of  the  soldier."  ' 

Making  Prohibited  Enlistments. — The  offense  contemplated  in  this 
Article  may  be  committed  by  any  commissioned  officer  of  the  Army  duly 
authorized  to  make  enlistments  or  to  muster  troops  into  the  military  ser- 
vice, and  may  consist  (1)  in  enlisting  a  minor  over  the  age  of  sixteen 
years  without  the  written  consent  of  the  proper  parent  or  guardian;  (2)  in 
mustering  such  a  person  into  the  military  service,  the  enlistment  having 
already  been  consummated;  (3)  in  enlisting  or  mustering  a  minor  under 
the  age  of  sixteen  with  or  without  parental  consent.  As  enlistments  are 
now  conducted,  the  oifense  of  enlisting  a  minor  may  be  committed  by  any 
officer  of  the  Army  who  has  been  daly  authorized  to  make  enlistments  for 
the  military  establishment,  and  who  enlists  an  unemancipated  minor  under 
the  circumstances  above  set  forth,  or  who  knowingly  enlists  an  insane 
person  or  one  so  much  under  the  influence  of  intoxicating  liqaor  as  to  be 
unable  to  appreciate  or  understand  the  importance  of  the  act  of  enlistment, 
or  a  deserter  from  the  military  or  naval  service,  or  any  person  who  has  been 
convicted  of  an  infamous  criminal  offense.  The  term  deserter  as  used  in 
the  Article  includes  not  only  one  who  has  been  convicted  of  that  offense 
by  a  general  court-martial,  but  also  one  who,  being  absent  in  desertion,  is  a 
deserter  in  fact,  and  stands  charged  therewith  on  the  rolls  and  returns  of  the 
command  to  which  he  belongs.  An  infamous  offense  is  one  which  is  declared 
to  be  infamous  in  the  statute  creating  it,  or  has  that  quality  conferred  upon 
it  by  the  nature  of  the  punishment — imprisonment  in  a  State  prison  or 
penitentiary — imposed,  upon  conviction,  by  a  court-martial,  or  by  a  civil 


enlisted  in  1862,  "  for  three  years  or  during  the  war,"  could  not  legally  be  retained  in 
the  military  service  for  a  longer  period  than  three  years,  though  the  war  should  not  be 
terminated  at  the  end  of  that  time.     Dig.  J.  A.  Gen.,  388,  par.  10. 

In  the  written  form  of  enlistment,  which,  though  not  required  by  any  law,  is  now  in 
use  in  the  recruiting  service,  the  soldier  on  enlisting  is  made  to  "  agree  to  accept  from 
the  United  States  such  bounty,  pay,  rations,  and  clothing  as  are  or  may  be  established 
bylaw."  The  obligation  here  indicated,  however,  would  exist  independently  of  any 
specific  agreement.     Ibid.,  387,  par.  9,  note  2. 

In  an  opinion  of  Sept.  1,  1877,  it  was  held  by  the  Attorney-General  that  the  Secre- 
tary of  War  was  not  empowered  to  iuspend  the  contract  of  enlistment  of  a  soldier  by 
allowing  him  to  engage  in  a  certain  civil  occupation  for  a  time  and  then  resume  his  mil- 
itary service  under  his  enlistment,  or  otherwise  to  vary  the  terms  of  the  contract,  even 
with  the  consent  of  the  soldier.     15  Opiu.  Att.-Gen.,  362. 

'  See  note  2,  p.  349. 


TUE  ARTICLES  OF  WAR.  351 

court  of  competent  jurisdiction.  Intoxication  or  insanity  would  in  general 
be  established  by  the  testimony  of  witnesses  who  were  present  at  the  enlLst- 
ment  of  the  recruit;  infamy  by  the  production  of  tiie  judgment  of  the 
tribunal  before  which  the  conviction  was  had. 

Fraudulent  Enlistment. — It  is  provided  by  a  recent  enactment  of  Con- 
gress that  "  fraudulent  enlistment,  and  the  receipt  of  any  pay  or  allowance 
thereunder,  is  hereby  declared  a  military  offense  and  made  punishable  by 
court-martial,  under  the  (j:2d  Article  of  War."  ' 

This  offense,  constituted  and  made  punishable  as  a  violation  of  Article 
62  by  the  statute  above  cited,  is  committed  "  when  an  enlistment  is  procured 
by  means  of  a  willful  misrepresentation  in  regard  to  a  qualification  or  dis- 
qualification for  enlistment,  or  by  an  intentional  concealment  of  a  disquali- 
fication which  has  had  the  effect  of  causing  the  enlistment  of  a  man  not 
qualified  to  be  a  soldier,  and  who  but  for  such  false  representation  or  con- 
cealment would  have  been  rejected."  '  The  misrepresentation  or  conceal- 
ment characterizing  it  must  have  induced  the  enlistment  of  the  soldier,  and 
must  have  related  to  a  fact  which  if  known  would  have  caused  his  rejection. 
"Where  the  offense  consisted  in  his  having  concealed  the  fact  that  he  had 
been  discharged  with  a  questionable  character — viz.,  "very  good  except 
when  intoxicated,  then  bad" — it  has  been  held  that  such  offense  was 
chargeable  as  "  fraudulent  enlistment "  provided  the  knowledge  of  this  fact 
on  the  part  of  the  recruiting  officer  would  have  prevented  the  enlistment.' 

A  fraudulently  enlisting  soldier  may  be  disposed  of  in  either  of  two 
ways;  viz.^  he  may  be  brought  to  trial  for  his  offense  under  the  statute,  or  he 
may  be  discharged  "  without  honor."  If  brought  to  trial  and  convicted 
and  his  sentence  does  not  include  dishonorable  discharge  (as  it  need  not  do 
under  the  executive  orders  prescribing  a  maximum  punishment  for  this 
offense),  held  that  the  Government  could  not  properly  also  summarily  dis- 
charge him.  While  it  might  have  resorted  to  either  penalty,  it  would 
scarcely  be  just  to  subject  the  offender  to  both.  A  fraudulently  enlisted 
man  may,  without  trial,  be  summarily  discharged  with  forfeiture  of  all  pay 
and  allowances,  according  to  par.  1386,  Army  Regulations  of  1895.' 

A  fraudulent  enlistment  is  not  void,  but  voidable  only.  The  Govern- 
ment, on  becoming  cognizant  of  the  fraud,  may  avoid  the  enlistment,  or 
waive  the  objection  aiul  allow  it  to  stand — in  whicli  latter  case  the  accepted 
service  is  as  legal  as  that  of  any  other  soldier.     Where  the  fraudulent  char- 

'  Sec.  3.  Act  of  July  27.  1893  (27  Stat,  at  Large,  277). 

'  Circular  No.  13,  11.  Q,  A.,  1892. 

-  Dig.  J.  A.  Gen..  425.  pjir.  1. 

*  Ibid.,  par.  2.  An  enlisted  msiu  discharged  for  minority  concealed  at  enlisiment.  or 
for  other  cause  involving  fraud  on  his  part  in  the  enlistment,  is  not  entitled  to  pav  and 
allowances,  including  those  for  travel,  and  will  not  receive  tiual  siatemeiUs  unless 
deposits  or  detained  pay  are  due  him,  in  which  case  tinal  siatemenis,  containing  only  a 
list  of  his  deposits  or  the  arnouiU  of  detained  pay,  will  be  furnished.  Par.  lo86  A  R. 
1895.     See,  also,  G.  O.  42,  A.  G.  O.,  1894. 


o 


52  MILITARY  LAW. 


acter  of  an  enlistment  did  not  become  known  until  after  a  part  of  it  had  been 
served,  it  has  been  held  that  while  the  same  as  to  its  unserved  portion  might 
ieo-ally  then  be  avoided  and  terminated,  yet  as  to  the  part  served  it  was  a 
valid  contract,  and  the  pay  due  for  that  part  could  not  lawfully  be  stopped.' 

Akticle  4.  No  enlisted  man  dull/  sworn  sJiaU  he  discharged  from  the 
service  witliout  a  discharge  in  writing,  signed  by  a  field-officer  of  the  regi- 
ment to  which  he  belongs,  or  by  the  commanding  officer  when  no  field- 
officer  is  present ;  and  no  discharge  shall  be  given  to  any  enlisted  man  before 
his  term  of  service  has  expired,  except  by  order  of  the  President,  the  Secretary 
of  War,  the  commanding  officer  of  a  department,  or  by  sentence  of  a  general 
court-martial. 

The  corresponding  requirement  of  the  Prince  Rupert  Code  '  Tested  the 
power  to  discharge  enlisted  men  in  the  captain  of  the  company,  subject  to 
the  approval  of  the  regimental  commander.  From  1G88  to  1783  a  system 
of  regimental  recruiting  prevailed,  the  recruits  being  raised  in  pursuance  of 
a  contract  between  the  crown  and  the  regimental  commander.  During  this 
period  the  power  to  discharge  was  vested  in  the  colonel,  subject,  however, 
to  the  condition  that  the  discharged  soldier  should  be  replaced  at  the  expense 
of  the  colonel  or  regimental  fund.'  Since  the  year  1783  *  enlistments  in  the 
British  service  have  been  made  directly  by  the  crown,  and  the  correspond- 
ing power  to  discharge  has  been  reserved  to  the  crown;  by  whom  it  is  exer- 
cised either  directly  or  through  certain  military  commanders  duly  authorized 
to  act  in  its  behalf.^ 

It  is  impossible  to  ascertain  with  any  precision  when  the  present  prac- 
tice, requiring  the  discharge  to  be  signed  by  a  field-officer  of  the  regiment 
to  which  the  discharged  soldier  belongs,  was  incorporated  in  the  Articles  of 
"War.  It  appears  in  the  British  Articles  of  17G5  and  1774,  and  was  adopted 
without  change  in  the  American  Articles  of  1776.  In  the  revision  of  180G 
the  following  clause  was  added :  "  and  no  discharge  shall  be  given  *  *  *  but 
by  order  of  the  President,  the  Secretary  of  War,  the  commanding  officer  of 
a  department,  or  by  sentence  of  a  general  court-martial."  °  The  final  clause 
of  Article  2  of  the  Code  of  1806,  having  been  replaced  by  subsequent  legis- 
lation,' was  omitted  from  the  revision  of  1874. 

As  the  enlistment-paper  is  the  best  evidence  of  the  execution  of  his  enlist- 
ment contract,  the  discharge,  an  official  instrument  formally  executed  in 
writing  and  delivered  to  the  soldier,'  operates  not  only  to  release  him  from 

>  Dig.  J.  A.  Geii.,  426,  par.  3. 
'  Article  49. 

'Manual  Mil   Law,  218.     See,  also,  ihid  ,  pp.  205-221,  and  II.  Clode,  Mil.  Forces, 
6tc    20 

♦  23  Geo.  II.,  cli.  50,  known  as  "Burke's  Act." 
'  Man.  Mil.  Law,  219. 

«  Article  2,  Act  of  April  10,  1806  (2  Stat,  at  Large,  P,59). 

"<  99lh  Article  of  War,  sec.  5,  Act  of  July  1P>,  1806  (14  Stat,  at  Large,  92). 

*  The  formal  certificate  of  discharge,  furnished  in  blank  by  tlie  Adjutant-General,  is, 


THE  ARTICLES  OF   WAR.  353 

the  obli^'ations  incurred  at  enlistment,  but  to  furnish  legal  evidence  of  the 
fact  of  discharge,  as  well  as  of  the  circumstances — when  the  same  are  stated 
in  the  discharge  certificate — under  which  the  soldier  was  separated  from  tlie 
service.' 

While  no  soldier  can  assume  to  discharge  himself  from  the  military 
service,  he  is  yet,  at  the  expiration  of  his  contract  of  enlistment,  entitled 
in  general  to  be  at  once  formally  discliarged  by  the  proper  autliority.'  Iti 
view,  however,  of  the  terms  of  the  first  clause  of  this  Article,  the  discharge 
of  a  soldier  actually  takes  effect,  like  a  deed,  only  upon  tlie  delivery,  actual 
or  constructive,  of  the  written  certificate  of  discharge.' 

A  discharge  cannot  legally  be  given  a  soldier  before  the  expiration  of  his 
term  of  service  except  as  authorized  in  this  Article;  and  no  officer,  other 
tlian  the  three  designated,  can  exercise  the  authority,  expressly  devolved 
upon  tltein^  of  discharging  by  order.' 

Forms  of  Discharge. — This  Article,  in  its  second  clause,  specifies  two 
kinds  of  discharge  as  authorized  to  be  given  to  soldiers  before  their  terms  of 
enlistment  have  expired  and  which  are  quite  distinct  in  their  nature.     The 

when  duly  inadu  out  aud  signed  (see  Ailicle  of  War  4),  legal  evidence  of  the  fact  of 
discharge,  iiiid  of  the  circunislaiices  tlieiciii  slated  under  which  it  was  given.*  The 
certiticate  is  not  a  record,  and  its  statements  are  not  conclusive  upon  the  Government 
when  contradicted  by  record  or  other  better  evidence.     Dig.  J.  A.  Gen.,  358,  par.  13. 

The  statement  of  "  character  "  appended  to  the  certificate  is  no  part  of  the  discharge.^ 
This  description  is  devolved  by  par.  148.  A.  K.  (1895),  ujion  the  commanding  officer 
whose  duty  it  may  be  to  make  out  the  di.«;charge.  The  Army  Regulations  do  not  give  to 
his  stiperior  any  authority  over  tlie  subject.  Ibid.,  359,  par.  18.  The  "tiiud  state- 
ments," a  ])aper  required  by  paragraph  141,  Army  Regulations  of  1895,  to  be  furnished 
with  the  (iischarge,  constitutes  no  part  of  the  discharge;  the  discharge  is  complete  with- 
out them.     Ibid.,  35!),  par.  17. 

The  discharge  furnished  to  the  soldier  or  for  him  talces  effect,  like  a  deed,  upon 
delivery.  The  delivery  should  be  personal  unless,  at  its  date,  the  soldier  is  in  confine- 
ment awaiting  trial  or  under  sentence  ;  in  such  case  the  delivery  may  be  con.<;tructive, 
tlie  certificate  being  committed  to  the  commander  of  the  company,  post,  etc.,  to  be 
retained  by  him  for  the  soldier  until  released  from  arrest  or  imprisonment,  and  then 
rendered  to  him  personally.  This  is  the  recognized  practice  ;  the  delivery  to  the  com- 
mander being  deemed  tantamount  to  actual  delivery.     Ibid.,  par.  14. 

A  sohiier  should  not  be  furnished  witli  his  formal  discharge  on  the  day  of  the  expira- 
tion of  his  term  if  be  is  then  awaiting  sentence  of  court-martial.  No  soldier  in  such  a 
stjxtus  can  be  entitled  to  his  discharge  till  the  result  of  his  trial  be  published.  Ibid.,  .359. 
par   15. 

'  Dig.  J.  A.  Gen.,  21,  par.  2.  See  Board  of  Comr.s.  vs.  Mertz,  27  Ind.,  108  ;  Hanson 
«j».  S.  Sciiuale,  115  Mass.,  336  ;  United  States  vs.  Wright,  5  Philad..  296.  For  contents 
of  discharge  certificate  see  par  148.  Army  Regulations  of  1895,  as  amended  by  par.  1, 
General  Orders,  No,  10,  A.  G.  O.,  1897. 

'See  Justice  Story's  charge  to  the  jury  in  United  States  vs.  Travers,  2  Wheeler  Cr. 
C,  509;  also  Prendcrgast,  42.  See  also,  Dig.  J.  A.  Gen  ,  359,  par.  17.  "A  soldier 
cannot  discharge  himself  by  .'^imply  leaving  the  service  at  the  expiration  of  liis  term." 

'  Dig.  J.  A.  Gen.,  20,  par.  1.  Thus  where  a  s<ddier's  discharge  was  not  received  by 
him  at  his  station — a  hospital  in  the  field— till  at  the  end  of  three  month';  after  its  date, 
held  that  it  did  not  tjike  effect  till  its  receipt,  nnd  tliat  the  soldier  was  entitled  to  pay  up 
to  that  time.  Ibid.  Held  that  there  could  be  no  legal  delivery  of  a  discharge  to  an 
insane  soldier,  or  acceptance  of  such  by  him.  and  that  the  military  authorities  might 
properly  revoke  such  a  discharge  and  commit  the  soldier  to  the  Government  Hospital 
for  the  Insane,  as  directed  bv  par.  469,  A.  R.  of  1895. 

*i6Mf..  21.  par.  3. 

*  Hanson  is,  s.  Seituate,  115  .Mass.,  336:    Bd.  of  Comrs.  vs.  Mertz,  27  Ind.,  38C:    U.  8.  v«.  Wright,  5 
Philad.,  296. 


354  MILITARY  LAW. 

oue  is  given  by  executive  order,  and  tlie  other  by  sentence;  the  one  is  a 
rescinding  of  the  contract  of  the  soldier,  authorized  to  be  resorted  to  when- 
ever deemed  desirable,  at  the  discretion  of  the  Secretary  of  War,  etc.,  and 
is  in  law  an  honorable  discharge  or  a  discharge  without  honor,  as  the  case 
may  be;  the  other  is  a. pimishnient,  and  therefore  a  dishonorable  discharge. 
Oue  of  the  officials  named  can,  of  his  own  authority,  no  more  order  a  soldier 
to  be,  in  terms,  dishonorably  discharged  than  can  a  court-martial  adjudge 
a  soldier  to  be  honorably  discharged.'  Three  other  forms  of  discharge,  by 
executive  order,  without  honor,  and  by  purchase,  will  presently  be 
explained. 

Any  form  of  discharge  other  than  such  as  is  prescribed  in  the  4th  Article 
of  War  is  irregular  and  inoperative  (unless  indeed  otherwise  authorized  by 
subsequent  statute).  Mere  desertion  does  not  operate  as  a  discharge  of  a 
soldier;  he  may  then  be  dropped  from  the  rolls  of  his  conmiand,  but  he  is 
in  no  sense  discharged  from  the  Army.  Nor  can  an  official  publication,  in 
orders,  of  a  sentence  of  dishonorable  discharge  have  the  effect  of  discharging 


'  Dig.  J.  A.  Gen.,  21,  par.  3.  A  discharge,  however,  of  the  former  class,  though  it 
cauuot  operate  ia  hiw  as  a  dishonorable  discharge,  may  set  forth  on  its  face  the  reasou 
why  it  was  given  and  thus  exhibit  the  history  of  the  action  taken.  See,  also,  3  Opin. 
Att  -Gen.,  363. 

Where  a  soldier,  by  making  an  alteration  in  his  "  descriptive  list  "  so  as  to  cause  it  to 
appear  that  his  term  of  enlistment,  which  was  in  fact  live  years,  was  three  years  only, 
induced  the  regimental  commander  to  give  him  an  honorable  discharge  at  the  end  of 
three  years'  service,  held,  upon  the  fraud  being  presently  discovered,  that  the  discbarge 
might  legally  be  revoked  and  the  soldier  be  brought  to  trial  by  court-martial  under  the 
62d  Article  of  War.  But  where,  by  competent  authority,  according  to  the  present  4th 
Article,  an  honorable  discharge  was  given  to  a  soldier  who  was  at  the  time  in  arrest 
under  charges,  Jield  tiiat  such  discharge — no  fraud  being  imputable  to  the  soldier — was 
final  and  could  not  legally  be  revoked.     Dig.  J.  A.  Gen.,  355,  par.  2. 

Where  an  officer  of  volunteers  had  been  duly  mustered  out  of  service — a  form  of 
honorable  discharge — and  was  thus  a  civilian,  held  that  a  revocation  in  orders  of  his 
muster-out  and  a  substitution  therefor  of  a  dishonorable  discharge  would,  in  the 
absence  of  any  fraud  in  the  case,  be  wholly  unauthorized  and  illegal.     Ibid.,  par.  1. 

Where  a  .soldier  before  the  expiration  of  his  term  received  a  discharge  in  due  form, 
under  ttie  4th  Article  of  War,  though  charges  were  then  pending  against  him,  the 
authority  ordering  the  discharge  not  having  been  made  aware  of  such  charges,  held  that 
the  discharge  was  executed  and  could  not  be  revoked  with  a  view  to  bringing  the  soldier 
to  trial  ;  that  he  had,  by  the  discharge,  duly  become  a  civilian  and  was  under  the  con- 
trol of  the  military  authorities  no  more  than  any  other  civilian.     Ibid.,  359,  par.  19. 

Where  a  soldier  was  discharged  in  due  and  legal  form,  but  under  a  misapprehension 
in  regard  to  his  actual  status  ai  the  time,  which,  if  understood,  would  have  deferred 
action,  held  tliat  the  circumstance  that  the  discharge  was  given  under  a  mistake  of  fact 
did  not  invalidate  it  ;  that  it  had  become  duly  executed  and  could  not  be  recalled. 
Ibid.,  360,  par.  20.     See,  also,  ibid.,  par.  21. 

Held  that  an  honorable  discharge  was  simply  a  termination  of  the  particular  enlist- 
ment which  the  soldier  was  then  serving  ;  that  it  was  a  discharge  only  from  that  enlist- 
ment, and  did  not  apply  to  or  discharge  from  other  prior  unexpired  enlistments,  if  any. 
Unlike  a  dishonorable  discharge,  an  honorable  discharge  from  one  enlistment  does  not 
release  the  soldier  from  the  consequences  of  a  desertion  committed  under  a  prior  enlist- 
ment.    Ibid.,  360,  par.  23. 

Where  a  soldier  was  sentenced  to  a  forfeiture  of  his  pay  for  six  months,  but,  soon 
after  the  approval  of  his  sentence,  was  honorably  discharged  from  the  service  (under 
Article  4),  held  that  the  discharge  operated  as  a  remission  of  the  unexecuted  part  of  the 
forfeiture,  and  that  the  same  was  not  revived  upon  a  re-enlistment-    Ibid.,  par.  24. 


THE  ARTICLES  OF  WAR.  6bb 

ix  soldier;  tliere  must  still  be  u  notice,  actual^  as  by  the  delivery  of  the 
foriiiiil  (lisehiirL'e  ccrtificiite,  or  constructive^  to  etTectuate  such  discharge.' 

Honorable  Discharge;  Effects. — A  soldier  honorably  discharged  in  the 
usual  form,  at  the  end  of  his  term  of  enlistment,  is  no  longer  subject  to 
military  discipline  or  control.  Having  become  a  civilian,  he  is  entitled  to 
be  restored  at  once,  or  as  soon  as  the  exigencies  of  the  service  will  permit, 
to  the  rights  and  status  of  a  citizen.' 

Wiiere  an  honorable  discharge  has  once  duly  taken  ellect  by  the  delivery 
of  the  formal  certificate,  it  is  final  and  cannot  be  revoked  unless  obtained  bv 
fraud.'  But  in  such  a  case  the  revocation  should  be  made  within  a  reason- 
able time,  otherwise  the  Government  will  be  deemed  to  have  waived  the 
defect.  A  mere  order  for  a  discharge  may  of  course  be  recalled  or  suspended 
at  any  time  before  it  is  executed  by  the  delivery  of  the  discharge  ordered.* 

An  honora])le  discharge  once  duly  made  and  delivered  to  a  soldier  is  final 
as  to  his  rights  to  ])ay,  allowances,  or  bounty  due  at  the  date  of  its  takiug 
effect.  He  cannot  thereafter  be  subjected  to  any  of  the  consequences  of  a 
dishonorable  discharge.^ 

Discharge  by  Executive  Order. — Although  the  engagement  of  the  soldier, 
under  his  contract  of  enlistment,  is  for  a  term  certain,  the  Government  is 
under  no  obligation  to  retain  him  in  service  to  the  end  of  the  stipulated 

>  Dig  J.  A.  Gen.,  359,  par.   17. 

»  Dig.  J.  A.  Gen.,  356.  par.  G. 

^  See  opinion  of  the  Attorney-General  in  16  Opins.,  353,  in  which  it  was  held  that  aa 
honorable  discharge  obtained  by  gross  falsehood  and  fraud  was  revocable  by  the  Secre- 
tary of  War. 

^Dig.  ,J.  A.  Geu..  355,  par.  1. 

''Ibid.,  par.  3.  The  jirocedwre  in  respect  to  discharge  is  prescribed  in  the  following 
paragraph  of  the  Army  Regulations  : 

The  cause  of  dischiirge  and  the  soldier's  age  at  date  of  enlistment  will  be  stated  in 
the  body  of  the  discharge  certificate.  His  character  will  be  accurately  described  at  tiie 
bottom  of  the  certificate,  but  if  not  sutlicieiilly  good  to  allow  of  iiis  re-eulislment,  the 
words  "  No  objection  lo  liis  re-enlistment  is  known  to  e.\ist  "  will  be  erased.  The 
words  "  Service  honest  and  faithful  "  or  "Service  not  honest  and  faithful,'"  as  the  case 
may  be,  will  be  entered  >inder  "liemarks"  in  the  military  record  on  the  back  of  the 
discharge  certificate,  and  will  also  be  noted  on  the  final  statements.  The  company  com- 
mander will,  before  submitting  llie  discharge  certificate  to  the  proper  officer  for  signa- 
ture, inform  liie  .soldier  of  the  character  be  intends  to  give  him.  Sliould  the  soldier  feel 
that  injustice  will  be  done  him  thereb}'^,  he  maj'  at  once  apply  for  redress  to  the  post 
commander,  who  will  immediately  convene  a  board  of  officers  to  determine  tiie  facts  in 
tlie  case,  and  will  briefiy  note  the  finding  of  the  board,  if  approved  by  him.  on  the  dis- 
charge certificate.  But  in  all  cases  where  the  company  commander  deems  a  sobiier'.s 
services  unfaithful  lie  should,  whenever  practicible.  notify  the  soldier  at  least  tiiirty 
days  prior  to  discharge  of  the  char;uter  which  he  intends  to  give,  in  order  that  the  sol- 
dier may  have  ample  opportiniity  to  ajiidy  for  and  be  heard  before  the  board.  In  such 
cases  the  proceedings  of  the  board,  showing  all  the  facts  pertinent  to  the  incpiiry.  with 
the  views  of  the  intermediate  commanders  indorsed  thereon,  will  be  transmitted  for  the 
consideration  and  action  of  the  War  Department.  This  board  may  be  called  upon  the 
application  of  the  post  or  compan}-  commander,  and  if  by  the  former,  the  department 
commander  shall  apjioint  it.  The  character  i^iven  by  the  company  commander,  also  the 
character  found  by  the  board,  will  be  noted  on  the  muster-roll.  The  officer  who  pre- 
pares the  di.scharge  will  state  thereon  whether  the  man  is  married  or  unmarried,  the 
number  of  his  minor  childien,  and,  if  discliarged  from  a  re-enlistment,  the  number 
thereof.     Par.  148,  A.  R.  1895;  G.  O.  10,  A.  G.  O.,  1897. 


35r3  MILITARY  LAW. 

period,  and,  under  the  autliority  conferred  by  this  Article,  may  "  terminate 
at  pleasure  an  enlistment  without  regard  to  the  soldier."  '  It  is  essential  to 
the  disci}>line  and  efficiency  of  the  military  establishment  that  the  Govern- 
ment should  "  not  only  have  but  should  be  able  to  exercise  this  power 
without  question  or  controversy,"  '  and  at  its  discretion. 

A  discharge  given  by  the  Secretary  of  War,  under  the  authority  con- 
ferred by  this  Article,  operates  to  rescind  the  enlistment  contract  and  to 
restore  the  soldier  to  the  status  of  a  civilian.  Such  a  termination  of  the 
enlistment  contract  is,  in  respect  to  its  legal  effects,  an  honorable  discharge, 
and  carries  with  it  the  rights  and  privileges  incident  to  that  form  of  release 
from  military  service.' 

Dishonorable  Discharge.  —  A  dishonorable  discharge  is  a  discharge 
expressly  imposed  as  a  punishment  by  sentence  of  a  general  court-martial. 
It  is  only  in  pursuance  of  such  a  sentence  that  a  dishonorable  discharge  can 
be  authorized,  since,  hemg  sk  picnishinent ,  it  cannot  be  prescribed  by  an  order. 
In  a  case  of  this  discharge,  the  word  "  dishonorably  "  is  inserted  before  the 
word  '•  discharged  "  in  the  certificate,  and  it  is  added  that  the  discharge  is 
given  pursuant  to  the  sentence  of  a  certain  general  court-martial,  specifying 
it  by  reference  to  the  order  by  which  it  was  constituted.* 

An  executed  dishonorable  discharge  is  an  absolute  expulsion  from  the 
Armv,  and  as  such  operates  not  merely  to  terminate  the  j^articular  enlist- 
ment, but  to  cover  all  previous  unexecuted  enlistments  of  the  soldier,  if  any. 
A  soldier  sentenced  to  a  dishonorable  discharge,  duly  approved  and  executed, 
cannot  be  made  amenable  for  a  desertion  committed  under  a  prior  enlist- 
ment.^ 

The  discharge  of  a  soldier  dishonorably  discharged  under  a  sentence  of 


'  Disr.  J.  A.  Gen.,  892,  par.  2B. 

-  II.  Clode,  Mil.  Forces,  40.  "The  safety  of  the  realm  may  depend  in  some  measure 
on  the  imniediute  discharge  or  dismissal  of  iuiy  man  or  regiment  in  arms,  and  equally 
that  the  cause  of  such  dismissal  should  not  at  the  time  be  disclosed  by  the  responsible 
ministers  of  the  crown."  II.  Clode,  Mil.  Forces,  etc.,  40.  See,  also,  the  case  of  The 
.5th  Dragoon  Guards.  2  Grose,  Mil.  Antiq.,  231.  The  power  was  frequently  exercised 
during  the  Indian  Mutiny. 

-  Diir  .1.  A.  Gen..  SOB,  par.  6.  Much  less  is  he  subject  to  be  punished.  In  the  late 
C!ise  of  Wliile  vs.  McDonough  (3  Sawyer,  311),  where  a  .soldier  whose  term  of  enlistment 
expired  while  he  was  on  a  transport  with  a  detachment  was  formally  discharged,  and 
subsequently,  on  account  of  an  alleged  breach  of  discipline,  was  ordered  by  his  command- 
ing ntticer  to  work  in  the  coal-hole,  the  court  .say:  "The  conduct  of  the  officer  in  com- 
mand was  arbitrary  and  unjustifiable  eillier  by  law  or  military  necessity." 

*  Diff.  J.  A.  Gen.,  361,  par.  35.  The  punishment  formerly  awarded  of  drumming 
out  of  service  involved  a  dishonorable  discharge. 

'^  Ibid.,  par.  26.  Held  i\m\.  a  sub.sequent  enlistment  after  a  dishonorable  discharge 
would  not  operate  to  revive  any  outstanding  amenability  of  the  soldier.  This  upon  a 
principle  of  public  policy  and  good  faith,  and  becau.se  the  acceptance  into  the  service 
under  the  later  enlistmen't  is  in  the  nature  of  a  condonation.     IHd.,  par.  27. 

But  the  mere  fact  that  at  the  time  of  the  muster-out  of  his  regiment  a  soldier  was 
under  arrest  by  the  civil  authorities  for  an  alleged  crime,  which,  however,  was  not  fol- 
lowed by  a  trial  and  conviction,  does  not  justify  his  being  dishonorably  discharged.  If 
released  without  trial,  the  discharge  should  be  honorable.  Ibid.,  par.  28.  See  the 
article,  post,  entitled  Discharge  toithout  honor. 


THE  ARTICLES  OF  WAR.  357 

court-martial  should  be  dated  as  of  the  day  on  which  the  approval  of  the 
sentence  is  officially  published,  or  the  order  promulgating  such  approval  is 
received,  at  the  post  where  the  soldier  is  held.  It  is  to  that  date  that  he  is 
to  be  paid,  if  pay  is  due  him.' 

Where  a  soldier  has  been  legally  sentenced  to  be  dishonorably  discharged, 
and  such  sentence  has  been  duly  executed,  it  is  beyond  the  power  of  the 
Executive,  whatever  the  merits  of  the  case,  to  substitute  an  honorable  in  lieu 
of  the  dishonorable  discharge.  The  latter  having  gone  into  effect  cannot  be 
undone;  moreover  the  soldier,  having  been  thereby  wholly  detached  from 
the  military  service  and  made  a  civilian,  cannot  again  be  discharged  from 
the  service  until  he  has  been  again  enlisted  into  it.' 

A  sentence  of  dishonorable  discharge  (even  when  ignominious,  as  when 
accompanied  by  drumming  out)  entails  per  se  no  disability  to  re-enlist  in 
the  army;  nor  does  it  disqualify  for  civil  employment  under  the  United 
States.' 

Discharge  without  Honor. — A  third  species  of  discharge,  recently  recog- 
nized, is  "  discharge  without  honor."  *  It  is  employed  in  cases  wliere  there 
has  been  no  sentence  adjudging  a  dishonorable  discharge,  but  where  the  dis- 
charge awarded  is  induced  by  conduct  or  circumstances  not  honorable  to  the 
soldier — where  his  status  is  not  one  of  real  honor,  as  where  he  has  been 
sentenced  to  a  term  of  imprisonment  in  a  penitentiary  by  a  civil  court.  So 
where  the  soldier  has  mutilated  himself  in  order  to  obtain  a  discharge,  and 
it  is  deemed  expedient  to  discharge  him  without  bringing  him  to  trial.' 

The  ground  for  this  discharge  as  set  forth  in  par.  151,  Army  Regulations 
of  1895, — disqualification  for  service,  physically  or  in  character,  through 
his  own  fault, — is  a  disqualification  resulting  from  the  acts  and  habits  of  the 
soldier,  and  cannot  fairly  be  established  by  previous  convictions.' 

'  Dig.  J.  A.  Gen.,  359,  par.  16.     A  soldier  dishonorablv  dischurj^ed  lo.ses  bis  retained 
pay  under  Sec.  1281.  Rev.  Sts.  (see  par.  1369,  A.  R.  1895),'and  his  travel  pav  under  Sec 
1290.  Rev.  Sts.     Ibid..  361.  par.  24.  t    j  ■ 

'  It>ii. .  358,  par.  12. 

'  I  hid.,  par.  11. 

*  The  causes  for  and  occasions  upon  which  this  form  of  discharge  may  be  resortec'.  to 
are  set  forth  iu  Circular  No.  15,  H.  Q.  A.,  1893,  (paragraph  151.  Armv'Regulations  of 
1895.)  wiiich  contains  the  requirement  that  this  form  of  discharge  will  he  u.sed  in  the 
following  cases  only  : 

(a)  When  a  soldier  i-;  discharged  without  trial  on  account  of  fraudulent  enlistment 

(6)  When  he  is  discharged  without  trial  on  account  of  having  become  disqualified 
for  service,  physically  or  in  character,  through  his  own  fault. 

(ri  Whtn  the  discharge  is  on  account  of  imprisonment  under  sentence  of  a  civil 
court. 

('/)  When  at  the  time  of  the  soldier's  discharge,  at  or  after  the  expiration  of  his  term 
of  enlistment,  he  is  in  coiidnement  under  the  sentence  of  a  court-nuirtial  which  does 
not  provide  for  honorable  discharge.     Circular  15,  H.  Q.  A.,  Mav  11.  1893;  par.    151 
A.  R.  1^95. 

(e)  With  forfeiture  of  retained  pay  on  the  approved  finding  of  a  board  tliat  he  h.i'* 
not  served  honestly  and  faithfully. 

if)  When  di-scliarge  without  honor  is  specially  ordered  by  the  Secietarv  (.f  War  for 
any  other  reason.     Far   151,  A    R.  1895. 

*  Dig.  J.  A.  Gen,.  302,  par.  30.  «  Dig.  J.  A.  Gen.,  3(52,  par   31 


358  MILITARY  LAW. 

Discharge  by  Purchase. — Under  authority  conferred  by  statute'  the 
President  may,  in  his  discretion,  permit  a  sohlier  to  purchase  his  discharge 
even  if  his  service  has  not  been  faithful.  This  for  the  reason  that  tlie 
statute  does  not  prescribe,  as  a  condition  to  receiving  its  benefits,  that  the 
antecedent  service  sliall  have  been  "  faithful."  '  The  statute  leaves  it  to  the 
President,  "  in  his  discretion,"  to  determine  tlie  amount  to  be  paid  for  the 
discharge,  the  time  of  payment,  etc.,  and  indeed  whether  the  purchase  shall 
be  permitted  at  all.'  Discharge  by  purchase  is  a  form  of  honorable  dis- 
charge which  is  granted  to  enlisted  men  in  accordance  with  the  conditions, 
established  by  the  President,  and  set  forth  in  the  Army  Regulations." 

Article  5.  Any  officer  who  knowingly  musters  as  a  soldier  a  person  who 
is  not  a  sohlier  shall  be  deemed  guilty  of  knowingly  making  a  false  muster, 
and  punished  accordingly. 

This  provision  appears  as  Xo.  17  of  the  Articles  of  1806,  as  Article  7, 
Section  4,  of  the  British  Code  of  1774,  and  as  Article  7,  Section  4,  of  the 
American  Articles  of  1776.  In  the  British  Article,  and  in  the  correspond- 
ing provision  of  the  American  Code  of  1770,  its  operation  is  restricted  to  the 
muster  of  a  person  "  who  is  at  other  times  accustomed  to  wear  livery,  or 
who  does  not  actually  do  his  duty  as  a  soldier,"  In  this  form  the  clause  is 
somewhat  less  comprehensive  in  its  operation  than  that  which  is  given  to  it 
in  the  Articles  of  180G  and  1874.' 


'  Section  4,  Act  of  June  16,  1890  ^26  Stsite  at  Large,  157). 

«Di.?.  J.  A.  Gen.,  363.  par.  33.  Heldihnt  the  sununary  (Hscbarges  given  during  the 
late  war  for  causes  tainting  tlieir  cliaracter  were  of  this  kind,  although  not  known  by 
the  name  of  "  discliarges  without  honor  "  or  by  any  other  particular  name.  This  di.s- 
charge  is  sometimes  iriven  upon  the  remission  of  a  sentence.  See  S.  O.  169  of  July  26, 
1893"    Ihid.,  361,  par.  30. 

Held,  further,  thiit  the  Act  evidently  contemplated  soldiers  as  such,  and  that  it  did 
not  apply  to  general-service  clerks  or  messengers  or  to  Indian  scouts.  Ibid  ,  362, 
par.  33. 

"  Ihid,  par.  33  The  st.atute  specifically  declares  that  the  money  when  paid  "shall 
be  paid  to  a  paymaster  of  tiie  Army  "  ;  and,  in  view  of  tin's  express  provision,  ?ield  that 
payments  could  not  legally  be  made  to  po.st,  regimental,  company,  or  other  command- 
ers. The  paymaster,  a  bonded  official,  is  appointed  to  receive  payment  in  the  first 
instance  and  tliereupoii  make  the  depo.eit  directed  in  the  Act.     Ibid. 

*  In  time  of  peace  a  soldier  serving  in  the  second  year  or  first  si.v  months  of  the  third 
yenr  of  his  first  eidistmeiit  may  apply  to  tin;  Adjutiuit-General  of  the  Army  through 
military  channels  for  tlie  privilege  of  purchasing  his  discharge,  but  such  apitliea'ion  will 
not  be  entertained  unless  basedon  satisfactory  rea.sons  fully  set  forth  by  the  applicant 
and  verified  by  the  officer  forwarding  the  aj^plif^ation,  nor  unless  accompanied  by  a 
statement  of  tlie  soldier's  immediate  commanding  officer  sliowing  the  condil'on  of  nis 
accounts.  If  such  ai)plication  l)e  granted,  the  pur(;liase-price  will  be  entered  on  the 
final  statements  as  an  item  due  the  United  States.  A  soldier  once  discharged  by  pur- 
chase will  not  be  granted  that  favor  a  second  time.  A  soldier  serving  in  a  second  or 
any  other  enli.stment,  but  not  receiving  continuous  service  or  re-enlisted  pay,  is  not 
debarred  from  discharge  by  purclia.se.  Tlie  price  of  purchase  in  the  first  month  of  the 
second  year  will  be  $120,  and  will  be  .$5  less  in  each  succeeding  month  of  the  period 
during  which  purchase  may  be  authorized.     Par.  144,  A.  R.  1895. 

Soldiers  discharged  as  "provided  in  paragraphs  144  and  145  will  not  receive  travel 
allowances.     Par.  146,  ibid. 

'  See  Article  14,  post 


TUE  ARTICLES   OF    WAR.  359 

Abticle  6.  Any  officer  wJio  takes  moneij  or  other  thiny,  by  v:ay  of 
gratification,  on  musteriny  any  reyiment,  troop,  battery,  or  conijjany,  or  on 
.signiny  muster-roll^,  shall  be  dismissed  from  the  service,  and  shall  thereby 
be  disabled  to  hold  any  office  or  employment  in  the  service  of  the  United 
States. 

This  appears  as  Article  G,  Section  4,  of  the  British  Code  of  17T4,  as 
Article  G,  .Section  4,  of  the  American  Articles  of  177G,  and  as  Xo.  IG  of  the 
Articles  of  ISOG.  The  liritish  Article,  in  addition  to  displacement  from 
office,  subjected  the  otfender  to  "  snch  other  penalty  as,  by  the  Act  of 
Parliament,  is  inflicted  ";  the  Articles  of  ISOG  imposed  the  specific  penalty 
of  dismissal  from  office,  with  the  added  disqualification  "  to  have  or  to  hold 
any  office  or  employment  in  the  service  of  the  United  States." 

The  offense  of  taking  money,  etc.,  by  way  of  gratification  is  complete 
■whether  the  muster-rolls  are  true  or  false,  and  the  offense  may  be  committed 
in  the  muster  of  a  command  in  respect  to  which  there  is  no  doubt  of  the 
presence  of  mem])ers  or  their  fitness  for  service. 

Article  7.  Every  officer  commandiny  a  reyiment,  an  independent  troop, 
battery,  or  company,  or  a  yarrison  shall,  in  the  beyinniny  of  every  month, 
transmit  tlirouyh  the  proper  chan7iels,  to  the  Department  of  War,  an  exact 
return  of  the  same,  specif yi}iy  the  names  of  the  officers  then  absent  from  their 
2)0sts,  frith  the  reasons  for  and  the  time  of  their  absence.  And  any  officer 
who,  throuyh  neglect  or  desiyn,  omits  to  send  such  returns  shall,  071  conviction 
thereof  be  jmnished  as  a  court-martial  may  direct. 

This  requirement  appears  as  Article  2,  Section  5,  of  the  British  Code  of 
1774,  as  Article  2,  Section  5,  of  the  American  Articles  of  1776,  and  as 
No.  19  of  the  Articles  of  1806.  The  provision  respecting  the  names  of 
absent  officers  seems  to  have  been  intended  to  apply  to  the  cases  of  officers 
"  not  residing"  at  their  respective  posts  of  duty,  and  required  the  reasons 
for  and  the  duration  of  such  periods  of  non-residence  to  be  stated  in  the 
return.  The  Article  applied  only  to  troops  stationed  in  South  Britain,  bat 
similar  returns  of  the  state  of  the  forces  in  North  Britain  and  Ireland  were 
required  to  be  rendered  by  Article  3  of  the  same  section. 

The  word  "return,"  as  used  in  this  Article,  has  a  somewhat  less 
extensive  meaning  than  is  attached  to  the  term  in  the  8th  Article,  presentlv 
to  be  discussed.  It  relates  to  what  is  known  in  the  military  service  as  a 
"return  of  strength,"  which  is  required  to  be  furnished  monthly  to  the 
Adjutant-Oeneral  of  the  Army  by  the  commanding  officers  of  all  garrisons 
and  orgaiiizatious  composing  the  military  establishment.  As  so  used,  the 
term  relates  to  the  strength  or  composition  of  a  command,  as  distinguished 
from  the  returns  of  property  and  stores,  presently  to  be  described,  the 
rendition  of  which  is  regulated  by  the  8th  Article  of  War.  The  returns 
contemplated  by  this  Article  are  always  numerical;  they  are  also  nominal 
to  the  extent  of  requiring  the  lists  of  absent  officers  and  enlisted  men  to  be 


360  MILITARY  LAW. 

entered  thereon,  '*  with  the  reasons  for  and  the  time  of  their  absence." 
Other  information  respecting  the  state  or  efficiency  of  a  military  command^ 
if  desired  by  the  War  Department,  may  be  embodied  in  snch  returns  in 
pursuance  of  instructions  conveyed  to  the  Army  by  means  of  regulations, 
orders,  and  circulars.' 

"It  is  the  principal  object  of  this  Article  to  enforce  the  presence  of 
officers  with  their  corps,  as  well  as  to  guard  against  absence  in  any  case 
except  on  known,  well-authenticated,  and  reported  grounds.  Hence  it  is 
that  the  returns  are  ordered  to  be  made  at  quickly  recurring  intervals  and 
in  specific  terms;  and  any  failure,  therefore,  not  only  in  making  the 
returns  but  in  their  prompt  transmission  through  the  proper  channels  to 
the  War  Department,  either  through  design  or  neglect,  is  liable  to  be 
punished  on  conviction,  at  the  discretion  of  a  general  court-martial."  * 

Akticle  8.  Eoery  officer  ivlio  knowingly  makes  a  false  return  to  the 
Department  of  War.  or  to  any  of  his  superior  officers  autliorized  to  call  for 
such  returns,  of  the  state  of  the  recjinient,  troop,  or  coynpany,  or  garrison 
under  his  command,  or  of  the  arms,  amnumition,  clothing,  or  other  stores 
thereunto  belonging,  shall  on  conviction  thereof  before  a  court-martial  be 
cashiered. 

This  provision  appears  as  Article  1,  Section  5,  of  the  British  Code  of 
1774;  as  Article  1,  Section  4,  of  the  American  Articles  of  177G,  and  as  Xo. 
18  of  the  Articles  of  1806. 

A  return  is  a  numerical  statement  of  the  strength  and  condition  of  a 
military  command;  or  an  itemized  account  required  by  law,  regulations,  or 
by  existing  orders,  to  be  rendered  by  officers  of  the  Army  in  relation  to 
public  funds,  or  articles  of  public  property  in  their  official  possession.  The 
former  are  called  returns  of  strength  ;  the  latter  money  accounts,  or  property 
returns.  Authorized  transactions  respecting  the  public  money  or  property, 
in  the  nature  of  issues,  transfers,  payments,  expenditures,  and  the  like,  are 
evidenced,  and  tlie  retuims  and  accounts  are  supported, 'by  written  records  or 
memoranda  called  vouchers.  Accountability  for  public  money  or  property 
is  a  responsibility  peculiar  to  officers  as  a  class,  and  accounts  and  returns 
respecting  the  same  are,  as  a  rule,  rendered  by  commissioned  officers  alone; 
ordnance  sergeants  and  certain  enlisted  men  of  the  Signal  Department  are 
required  by  statute  to  make  returns  of  the  public  property  in  their  posses- 
sion when  serving  at  posts  at  which  no  commissioned  officers  are  present. 

The  returns  contemplated  by  this  Article  are  of  a  general  nature,  such 
as  a  superior  officer  is  authorized  to  call  for  at  any  time  and  which  an 
inferior  is  required  to  make.'    They  include  the  returns  required  to  be  made 


'  For  instructions  respectinj^  the  preparation  and  rendition  of  monlbly  returns, 
rnfrruphs  789.  790,  792.  793,  794,  and  796,  Army  Regulations  of  i.SgS. 


_^      _  _  see 

parnf 

»  Siiinuels.  321. 
2  lldd.,  320. 


THE  ARTICLES   OF   WAR. 


361 


to  tlie  Adjutant-Crenenil  under  the  7th  Article,  and  such  returns  or  reports 
of  the  strength  or  composition  of  a  military  command  as  may  be  required 
from  time  to  time  by  proper  superior  authority;  together  with  such  returns 
as  are  required  by  law  to  be  rendered  in  respect  to  the  several  classes  of 
public  property  specified  in  the  Article.  The  amenability  here  referred  to 
is  in  addition  to  that  enforced  by  the  Treasury  Department  and  its  account- 
inf  officers,  in  accordance  with  the  terms  of  the  Revised  Statutes  and  the 
several  enactments  amendatory  of  the  same.' 

It  is  no  matter  in  what  the  falsehood  may  consist, — whether  in  number  or 
quality  of  the  troops,  of  which  they  purport  to  be  a  true  account,  or  of  the 
arms,  ammunition,  clotliing,  or  stores, — as  circumstances  of  inefficiency 
might  be  equally  prejudicial  to  the  service  with  those  of  positive  defect;  or 
whether  the  deficiency  arise  from  a  fixed  or  occasional  cause,  as  from  the 
temporary  absence  of  men,  or  arms,  etc.  It  is  the  duty  of  every  officer  to 
return  things  as  they  are.  The  olfense  will  be  complete  if  the  returns  are 
not  true,  with  the  knowledge  of  those  interested  in  making  them,  in  any 
one  particular  represented.  All  military  acts  and  operations  must  be  under- 
taken on  a  confidence  in  such  returns,  and  any  deceit  discovered  in  them,  as 
it  might  affect  any  military  plan,  is  visited  with  a  severe  and  tangible 
punishment.^ 

The  only  inquiry  that  can  arise  under  any  charge  founded  on  this 
Article  is  whether  the  returns  in  question  are  false  or  otherwise;  and  next, 
whether  the  party  making  the  returns  is  apprised,  at  the  time  of  making 
them,  of  their  being  false.  On  the  latter  branch  of  the  inquiry  it  may  be 
remarked  that  an  officer  is  always  presumed  to  know  what  from  the  duty 
of  his  office  he  is  bound  to  know  or  ought  to  inform  himself  of.  So  that 
iirnorance  of  the  contents  of  the  returns,  subscribed  by  an  officer,  cannot  be 
pleaded  in  excuse,  for  it  was  his  business  previously  to  inquire  (as  it  will  be 
in  all  cases  where  his  signature  is  not  merely  formal)  into  the  truth  of  the 
statements  made  in  them.' 

This  Article  refers  only  to  returns  made  by  certain  commanders  as  such. 
It  is  only  as  commander  of  a  regiment,  company,  or  garrison  that  an  officer 
can  be  made  ameiuible  to  a  charge  under  the  Article;  an  officer  not  exercis- 
ing one  of  these  commands  is  not  within  its  terms.* 

Aeticle  9.  AU  public  slaves  taken  from  the  enemii  shall  he  secured  for 
the  service  of  the  United  States ;  and  for  neglect  thereof  the  commanding 
officer  shall  be  answerable. 

'  The  "returns"  indicated  in  the  Article  can  scarce!}'  be  said  to  include  rel\iru8 
of  funds  ;  wh;it  is  contempliitod  bcin?  mainly  returns  of  tlie  personml  or  maUniel  of  the 
command.  A  false  return  of  a  company  f\ind  would  more  properly  be  charged  under 
another  Article,  as  the  61st  or  62d.     Di"?.  J.  A.  Gen.,  22.  par.  3. 

'Samuels.  320.  An  officer  "  knowingly  makes  a  false  return  "under  this  Article 
who  makes  a  return  which  he  knows  to  be  untrue  in  any  material  particular.  Ibid., 
par.  2. 

»  7A;Vf.,  320.  321. 

*Dig.  J.  A.  Gen.,  22,  par.  1.     See  G.  C.  M.  O.,  12,  19,  War  Dept.,  1872. 


362  MILITARY  LAW, 

This  appears  as  Article  20,  Section  14,  of  the  British  Code  of  1774;  as 
Article  20,  Section  13,  of  the  American  Articles  of  1T7G;  and  as  Xo.  58  of 
the  Articles  of  180G.  In  the  American  Articles  of  177G  and  in  the  corre- 
sponding British  Code  of  1TT4  the  commander-in-chief  is  made  responsible 
for  the  execution  of  this  statute;  in  the  Articles  of  1806  the  responsibility 
is  placed,  somewhat  less  clearly,  upon  the  "  commanding  officer." 

This  provision  is  in  accordance  with  the  principle  of  the  law  of  nations 
and  of  war,  tliat  enemy's  property  duly  captured  in  war  becomes  the  prop- 
erty of  the  government  or  power  by  whose  forces  it  is  taken,  and  not  that  of 
the  individuals  who  take  it.'  "  Private  persons  cannot  capture  for  their 
own  benefit."  '  Military  stores  taken  from  the  enemy,  becoming  upon 
capture  the  property  of  the  United  States,  Congress,  which  by  the  Consti- 
tution ''  is  exclusively  vested  with  the  power  to  dispose  of  the  public  property 
as  well  as  to  make  rules  concerning  captures  on  land  and  water,  can  alone 
authorize  the  sale  or  transfer  of  the  same.  An  officer  or  soldier  of  the 
Army  who  assumes  of  his  own  authority  to  a})propriate  such  articles  renders 
himself  chargeable  with  a  military  offense." 

It  is  a  general  principle  that  captured  property  of  an  enemy  with  whom 
we  are  at  war  accrues  to  the  United  States.  The  application,  however,  of 
this  principle  during  the  late  civil  war  was  affected  by  the  operation  of  cer- 
tain Acts  of  Congress.  Personal  property,  indeed,  of  the  Confederate 
States,  or  of  one  of  them,  became  on  capture  by  the  Federal  forces  the 
yyvo^QvtY  jure  belli  oi  VciQ  United  States.  So  the  title  to  their  real  estate, 
occupied  by  the  United  States  Army  at  some  period  of  the  war  and  held  till 
its  end,  was  completed  in  the  United  States  by  the  subjection  and  dissolution 
of  the  hostile  government,  and  became  public  property,  subject  to  the  dis- 
position of  Congress.  But  real  estate  of  individual  enemies  (including 
private  corporations),  while  subject  to  be  sold,  etc.,  under  the  Act  of  July  2, 
1804,  could  not  in  general  become  vested  in  the  United  States  except 
through  the  judgment  of  a  competent  court  confiscating  the  same  upon  pro- 
ceedings instituted  under  the  Act  of  July  17,  18G2. 

As  to  the  personal  property  of  individuals,  this  (though  in  some  instances 
made  the  subject  of  proceedings  for  confiscation)  was  mostly  disposed  of  by 
and  under  the  Act  of  March  12,  1863,  known  as  the  "  Captured  and  Aban- 
doned Property  Act,"  by  which  such  property  (except  munitions  of  war  and 
other  material  used  or  intended  to  be  used  in  prosecuting  the  war  against 

'  Dig.  J.  A  Gen.,  22.  United  Suites  vs.  Klein.  \?,  Wallace,  136  :  Decatur  vs.  United 
States,  "Devereux.  110;  Wliite  vs.  Red  Cliief,  1  Woods,  40;  Branner  m.  Felkner, 
1  Heisk.,  232;  Wortliy  vs.  Kinamon,  44  Ga.,  299;  Huff  vs.  Odoin,  49  id.,  395;  13 
Opins.  Att  -Gen..  lO-')  ;  H()H,-,'li.  iPractice),  :529.  330  ;  G.  O.  54,  Hdqrs.  of  Army,  Mexico, 
ly48:  G.  O.  21,  War  Dept.',  1848;  do.  64,  107.  Id.,  1862.  And  see,  also,  Lamar  vs. 
Browne,  2  Otto,  195.  in  reti^ard  to  the  same  principle  as  illustrated  by  the  Captured 
and  Abandoned  Property  Act  of  March  12,  1863. 

"■  Worthy  vs.  Kinamon,  44  Ga.,  299. 

»  Art.  1.  Sec.  8,  par.  11;  Sec.  3.  par.  2. 

*  Dig.  J.  A.  Gen.,  22,  par.  1.     See,  also,  Sec.  5313,  Rev.  Sts. 


TUE  ARTICLES  OF   WAR.  363 

the  United  States,  and  which  were  of  course  subject  to  seizure  by  tlie  army 
and  became  on  capture  the  property  of  the  United  States)  was  required  to 
be  collected,  sold,  and  tlie  jn-oceeds  paid  into  the  Treasury,  subject  to  the 
claims  therefor  of  parties  who  should  establish  their  ownership  of  the 
property  and  the  fact  that  they  had  not  '*  given  aid  or  comfort  to  the 
rebellion.''  ' 

A  loyal  owner  of  property  captured  by  the  enemy  during  the  war,  and 
afterwards  recaptured  by  the  Federal  forces,  may  have  the  same  turned  over 
to  him  by  executive  authority,  where  clearly  identified  as  belonging  to  him, 
and  should  in  general  be  allowed  to  receive  it  free  from  any  charge  in  the 
nature  of  salvage.'  In  a  case,  however,  in  which  extraordinary  expense  lias 
been  incurred  in  saving  the  property,  which  the  owner  should  equitably  pay 
or  contribute  to,  the  Secretary  of  War  would  not  properly  take  action  in  the 
absence  of  specific  authority  from  Congress.' 

Article  10.  lu'erii  officer  comuumding  a  troop,  battery,  or  company  is 
charged  with  the  arms,  accoutrements,  ammimition,  clothing,  or  other  military 
stores  belonging  to  his  command,  and  is  accountable  to  his  colonel  in  case  of 

'  Dig.  J.  A.  Geu.,  212,  par.  1.  See,  under  tliis  paragraph,  United  Slates  vs.  Padel- 
ford.  9  Wallace,  538;  United  States  ijs.  Klein.  13  id.,  136;  United  States  vs.  Iluckabee, 
16  id.,  414:  Haycraft  vs.  United  States,  22  id.,  81  ;  Lamar  vs.  Browne,  2  Otto,  187; 
Wiiliams  vs.  Bruli'y,  6  id.,  188;  Young  vs.  United  States,  7  id.,  60;  Ford  vs.  Surget,  id., 
594;  Johnson  vs.  Dow,  10  id.,  158;  Porte  vs.  United  States,  Deveieux,  109;  Winchester 
vs.  United  States,  14  Ct.  CI.,  13;  United  States  vs.  A  Tract  of  Land,  1  Woods,  475; 
Atkinson  vs.  Central  Ga.  Mfg.  Co.,  58  Ga.,  227. 

Held  that  the  property  of  enemies,  captured  jMr«  belli  in  a  civil  war,  did  not  belong  to 
the  class  of  property  indicated  in  Article  5  of  the  Amendments  to  the  Constitution,  the 
taking  of  which  "  for  public  use  without  just  compensation"  is  proiiibited.  Dig.  J.  A. 
Gen..  213,  par.  2. 

Held  that  a  claim  by  an  individual  for  rent  for  the  use  and  occupation  ])y  the  United 
States  of  captured  real  estate  for  an  alleged  unreasonable  period  after  the  end  of  the 
war  without  commencing  ()roceediugs  for  confiscation  could  not  be  allowed  by  an  exec- 
utive officer  or  department,  and  that  as  such  a  claim  would  not  be  within  the  jurisdic- 
tion of  the  Court  of  Claims,*  the  same  could  be  entertained  onl}'  by  Congress.  Ibid., 
par.  3. 

The  owner  of  property  captured y«?'e  belli  is  not  entitled  to  recover  its  value  under  the 
provisions  of  Sec.  3483,  Rev.  Sis.,  as  being  property  impressed  in  the  military  service. f 
Ibid.,  par.  4. 

Held  that  a  civilian  into  whose  hands  had  come  at  the  end  of  the  late  war  certain 
captured  personal  property  of  the  enemy  was  not  entitled  to  convert  it  to  his  own  use 
or  to  demand  compensation  as  a  condition  of  its  surrender  to  the  United  States  authori- 
ties.    Ibid.,  par.  6. 

Sec.  218,  Rev.  Sts.,  in  requiring  the  Secretary  of  War  to  collect,  etc..  "  all  such  ilags, 
standards,  and  colors  as  are  taken  by  the  army  from  the  enemies  of  the  United  States,"  is 
believed  to  have  reference  to  flags  of  the  enemy.  So,  adoised,  that  a  Hag  of  a  Massa- 
chusetts regiment,  captured  by  the  enemy  and  retaken  at  the  end  of  the  war  at  Richmond, 
was  not  to  be  considered  as  one  of  the  class  placed  by  the  statute  under  the  charge  of  the 
Secretary  of  War,  and  might  therefore  properly  be  returned  to  the  State  or  the  regiment, 
if  originally  belonging  to  or  furnished  by  the  .same  Otherwise  if  furnished  by  the 
United  States  :  in  such  case  the  Hag  is  property  of  the  United  States,  disposable  only  by 
Congress.     Ibid.,  par.  7. 

'  Wilson  rs.  U.  S.,  4  Ct.  Cls.,  559. 

»  Dig.  J.  A.  Gen.,  213,  par.  5. 

•  See  Sec.  1059,  Rev.  Sts.  ;  Bishop  vs.  United  States,  4  Ct.  CI.,  448  ;  Slawson  vs.  'Tnited  States.  IS 
Wallace.  314. 

t  As  to  the  distinction  between  capture  and  impressment,  see  11  Opins.  Att.-Gc     378. 


S64:  MILITARY  LAW. 

their  being  lost,  spoiled,  or  damaged  otherwise  than  hy  unavoidable  accidents 
or  on  actual  service. 

This  requirement  appears  as  Article  5,  Section  13,  of  the  British  Code  of 
1774,  as  Article  5,  Section  12,  of  the  American  Articles  of  1776,  and  as 
No.  40  of  the  Articles  of  1800. 

It  is  the  purpose  of  this  Article,  taken  in  connection  with  the  15th, 
16th,  and  17th  Articles  of  similar  purport,  to  protect  the  public  property 
and  stores  from  waste  or  destruction,  by  establishing  a  disciplinary  responsi- 
bility, in  addition  to  the  fiscal  accountability  which  is  enforced  by  the 
auditors  of  the  treasury  and  the  several  chiefs  of  bureaus  in  the  War 
Department.'  It  therefore  fixes  such  disciplinary  accountability,  for  the 
purposes  set  forth  in  this  Article,  in  the  commanding  officer  of  the  troop, 
battery,  or  company,  who  is,  by  its  express  terms,  made  responsible  to  his 
regimental  commander  for  any  loss,  spoiling,  or  damage  not  due  to 
''unavoidable  accident,"  or  which  may  occur  elsewhere  than  "on  actual 
service." 

Save  for  the  disciplinary  responsibility  contemplated  by  this  Article, 
there  is,  under  existing  laws  and  regulations,  no  system  of  accountability  to 
regimental  commanders  for  property  belonging  to  the  United  States. 
Keturns  for  such  property  are  made  upon  forms  prescribed  by  the  War 
Department,  and  are  rendered  to  the  chiefs  of  bureaus  to  which  the  prop- 
erty i^ertains.  In  consequence  of  an  opinion  rendered  by  the  Attorney- 
General  in  1871,''  these  returns  were  submitted  to  the  auditor  of  the 
treasury  for  settlement  under  the  general  direction  of  the  Secretary  of 
"War.^  By  subsequent  legislation,  however,  this  practice  has  been  discon- 
tinued,^ and  the  examination  of  property  returns  is  now  vested  in  the 
executive  department  to  which  the  property  pertains;  and  the  heads  of  the 
several  executive  departments  are  "empowered  to  make  and  enforce  regula- 
tions to  carry  oat  the  provisions  "  of  this  enactment." 

Unavoidable  Accidents  are  those  which  are  unavoidable  in  the  sense  of 
inevitable,  because  effected  or  influenced  by  the  uncontrollable  operations  of 
nature,  or  "such  as  result  from  human  agency  alone,  but  are  unavoidable 
under  the  circumstances."  * 

The  term  does  not  apply  to  an  accident  which  it  is  physically  impossible, 
in  the  nature  of  things,  to  prevent,  but  to  an  accident  not  occasioned  in  any 
degree,  remotely  or  indirectly,  by  the  want  of  such  care  and  skill  as  the  law 
holds  every  man  bound  to  exercise.  An  accident,  on  the  other  hand,  is 
"  avoidable"  when  the  act  which  occasioned  it  was  not  called  for  by  any 


'  See  Samuels,  514. 

5  13  Opin.  Att.Geti.,  483. 

'  Scott,  Dij^est  Mil.  Laws  of  the  United  States,  par.  54,  note  19. 

*  Act  of  March  1,  1894(28  Stat,  at  Large,  47). 

*  Sec.  4.  Act  of  March  1,  1894  (28  Slat,  at  Large,  47). 

*  Anderson's  Law  Diet. 


THE  ARTICLES   OF    WAli.  365 

duty,  and  the  injury  resulted  from  the  want  of  that  extraordinary  care  which 
the  law  reasonably  requires  of  one  doing  such  lawful  act,  or  because  the 
accident  was  the  result  of  actual  negligence  or  folly  and  might  with  reason- 
able care,  adapted  to  the  emergency,  have  been  avoided.' 

The  words  "actual  service"  as  used  in  this  Article  relate  to  actual 
operations  in  the  field;  that  is,  to  a  state  of  military  activity  in  which  the 
operations  against  the  enemy  assume  paramount  importance,  and  the  loss  or 
damac^e  results  from  acts  of  war  done  in  the  presence  of  the  enemy  or  in 
the  actual  theatre  of  military  operations. 

Article  11.  Every  officer  commanding  a  regiment  or  an  iti(kj>ende?ii 
troop,  battery,  or  company  not  in  the  field  may,  tchen  actually  quartered 
with  such  command,  grant  furloughs  to  the  enlisted  men,  in  such  numbers 
and  for  such  time  as  he  shall  deem  consistent  with  the  good  of  the  service. 
Bveri/  officer  comnianding  a  regiment  or  an  independent  troop,  battery,  or 
company  in  the  field  may  grant  furloughs,  not  exceeding  thirty  days  at  one 
time,  to  five  per  centum  of  the  enlisted  men,  for  good  conduct  in  the  line  of 
duty,  but  subject  to  the  approval  of  the  commander  of  the  forces  of  which  said 
enlisted  men  form  a  part.  Every  company  officer  of  a  regiment  command- 
ing any  troop,  battery,  or  company  not  in  the  field,  or  commanding  in 
any  garrison,  fort,  post,  or  barrack,  may,  in  the  absence  of  Jiis  field-officer, 
grant  furloughs  to  the  enlisted  men,  for  a  time  not  exceeding  tiuejity  days 
in  six  months,  and  not  to  more  than  tiro  persons  to  be  absent  at  the  same 
time. 

This  requirement  appears  as  Article  2,  Section  4,  of  the  British  Code  of 
1774,  as  Article  2,  Section  4,  of  the  American  Articles  of  1770,  and  as 
No.  12  of  the  Articles  of  1800.  The  second  clause  of  the  Article  is  a 
re-enactment  of  Section  32  of  the  Act  of  March  3,  1803.'  The  final  clause 
of  the  Article  of  1806,  permitting  more  than  two  persons  to  be  absent  at  the 
same  time  "  if  some  extraordinary  emergency  should  require  it,"  was  omitted 
from  the  enactment  of  1874.' 

Article  12.  At  every  muster  of  a  regiment,  troop,  battery,  or  company^ 
the  commanding  officer  thereof  shall  give  to  the  jnustering  officer  certificates, 
signed  by  himself,  stating  how  long  absent  officers  have  been  absent  and  the 


'  Anderson's  Law  Diet.  Xn  one*  is  responsible  for  that  wliieli  is  merely  the  net  of 
God  or  inevitiible  accident.  But  when  human  airency  is  enrabineci  with  it,  and  nesrlect 
occurs  in  the  employment  of  such  ac:ency,  a  liability  for  damages  results  from  the  nec- 
lect.     Dvgert  ra.  Bradley.  8  Wend. .^473. 

«  Section  82,  Act  of  ^yiarch  3,  1863  (12  Stat,  at  Large,  736). 

*  The  subject  of  furloughs  to  enlisted  men  is  now  in  part  governed  bv  the  require- 
ments of  paragraphs  106-1 12  of  tiie  Army  Regulations  of  1895  A  right  to  a  furlough  at 
the  end  of  three  years'  service,  created  by  the  .Act  of  .Tune  16.  1S90.  (26  Stat,  at  Large, 
]57,)ceased  to  be  operative  on  August  1.  1897,  when  the  statute*  fixing  the  length  of  ihe 
term  of  eulistmeut  at  three  years,  in  time  of  peace,  went  into  effect. 


«  Sec.  2,  Act  of  August  1,  1894  (28  Stat,  at  Large.  216). 


366  MILITARY  LAW. 

reasons  of  their  absence.  And  the  commanding  officer  of  every  trmp,  bat- 
tery, or  company  shall  give  like  certificates,  stating  how  long  absent  no)i- 
comniissioned  officers  and  private  soldiers  have  been  at)sent  and  the  reasons  of 
their  absence.  Such  reasons  and  time  of  absence  shall  be  inserted  in  the 
muster-rolls  opposite  the  names  of  tlie  respective  absent  officers  and  soldiers, 
and  the  certificates,  together  with  the  muster-rolls,  shall  be  transmitted  by 
the  mustering  officer  to  the  Department  of  War,  as  speedily  as  the  distance 
of  the  place  and  muster  toill  admit. 

This  provision  appears  as  Article  3,  Section  4,  of  the  British  Code  of 
17T4,  as  Article  3,  Section  4,  of  the  American  Articles  of  177G,  and  as  No. 
13  of  the  Articles  of  180(3.  The  final  clause  of  the  Article  of  1776,  requir- 
ing the  muster-rolls  and  certificates  to  be  transmitted  to  the  Congress,  was, 
in  the  corresponding  Article  of  1806,  so  modified  as  to  require  them  to  be 
transmitted  to  the  War  Department  "  as  speedily  as  the  distance  of  the  place 
and  muster  will  admit." 

This  Article  regulates  the  contents  of  the  certificates  of  absence,  the 
time  of  their  submission,  and  points  out  the  person  who  is  entitled  to  receive 
them;  it  also  requires  that  certain  data  which  they  contain  shall  be  entered 
ujion  the  muster-rolls. 

Article  13.  Every  officer  ivho  signs  a  false  certificate,  relati^ig  to  the 
absence  or  pay  of  an  officer  or  soldier,  shall  be  dismissed  from  the  service. 

This  appears  as  Article  4,  Section  4,  of  the  British  Code  of  1774,  as 
Article  4,  Section  4,  of  the  American  Articles  of  1776,  and  as  No.  14  of  the 
Articles  of  1806,  in  which  the  scope  of  the  ofi:ense  was  intended  to  include 
false  certificates  in  respect  to  the  pay  of  officers  and  enlisted  men.  The 
nature  and  contents  of  the  certificate  contemplated  are  set  forth  in  the  pre- 
ceding Article.  The  strictness  of  practice,  in  respect  to  musters,  certificates 
of  absence,  and  the  like,  indicated  by  this  Article  and  others  of  similar  pur- 
port, is  coeval  in  its  origin  with  the  standing  army  in  England,  and  had 
there  become  well  established,  as  a  matter  of  public  policy,  when  the  British 
Articles  were  adopted,  with  some  modifications,  for  the  regulation  of  the 
military  establishment  raised  by  the  Congress  for  service  during  the  War  of 
the  Revolution." 

Article  14.  Any  officer  who  Tcnowingly  maJces  a  false  muster  of  man  or 
horse,  or  who  signs,  or  directs,  or  allows  the  signitig  of  any  muster-roll 
knotving  the  same  to  contain  a  false  muster,  shall,  upon  proof  thereof,  by 


'  It  will  not  be  a  sufficient  defense  to  a  charge  under  this  Article  that  the  accused 
believed  the  certificate  sicned  by  him  to  be  true,  if  it  was  false  in  fact.*  But  held  that 
the  mere  sisning,  by  an  officer,  of  a  voucher  for  his  pay  before  the  last  day  of  the  month 
for  which  it  was  due  did  not  constitute  au  offense  of  the  class  intended  to  be  madfe 
punishable  by  this  Article.f 


•  Dig.  J.  A.  Oen.,  2-3;  Samuel.  298:  O'Brien,  302. 
t  Ibid.    See.  G.  C.  M.  O.  28,  War  Department,  1822. 


THE  ARTICLES  OF  WAR.  367 

two  wifnesties,  before  a  court-niartial,  be  dismissed  fro/ii  the  service,  and  shall 
%erebij  be  disabled  to  hold  any  office  or  employment  in  the  service  of  the 
United  Slates. 

This  requirement  appears  as  Article  5,  Section  4,  of  the  Britisli  Code  of 
1774,  and  of  the  American  Articles  of  180G.  It  was  re-enacted  without 
change  as  No.  15  of  the  Articles  of  1806. 

As  the  offense  involves  the  falsification  of  an  official  document,  it 
becomes  necessary  to  a  conviction  under  it  to  overcome  the  i)resumption  of 
good  faith  which  attends  the  execution  of  such  instruments;  the  statute, 
therefore,  contains  a  rule  of  evidence  requiring  the  testimony  of  two  wit- 
nesses as  to  the  execution  and  character  of  the  certificate,  in  order  to  war- 
rant a  conviction  of  the  offense  named  in  the  Article.' 

False  Muster,  etc. — Articles  5,  0,  12,  13,  and  14  relate  to  the  military 
offense  known  as  "false  muster,"  and  to  certain  offenses  connected  there- 
with; for  this  reason  they  will  be  considered  togetlier. 

Musters. — A  muster  is  the  periodical  assembling  of  organized  commands 
for  review  and  personal  inspection,  with  a  view  to  the  verification  of  their 
numbers  and  equipment,  and  the  presence  and  identity  of  their  individual 
members.  In  addition  to  the  periodical  musters  al)ove  described,  the  law 
requires  the  muster  of  organized  commands  which  enter  the  military  service 
of  the  United  States  as  such,  in  response  to  calls  of  the  Executive  npon  the 
several  States  in  time  of  war  or  public  danger;  a  similar  formality  attends 
their  discharge,  and  the  rolls  by  which  such  muster-in  and  muster-out  are 


'  Prior  to  the  inauguration  of  the  public  auditing  system  in  England  great  abuses  liad 
existed  in  the  matter  of  musters  in  both  the  military  and  naval  establisliments;  this  was 
especially  true  of  the  reigns  of  the  last  two  sovereigns  of  the  house  of  Stuart.  During 
the  reisrn  of  William  and  Mary  a  Parliamentary  Commission  was  created  to  in(tiiire  into 
the  subject.  After  a  protracted  investigation,  in  which  a  great  mass  of  evidence  was 
accumulated,  a  report  was  submitted  to^Parliameut  in  which  the  existence  of  specific 
abuses  was  established.  As  a  result  the  system  of  public  audit  was  inaiigurated  whicli 
was  intended  to  afford  a  remedy  for  the  abuses  complained  of,  and  which  was  found  to 
be  so  efficient  in  practice  that  it  has  been  continued  in  existence  to  the  present  time.* 

The  early  Mutiny  Acts  contained  several  clauses  framed  with  the  object  of  securing 
the  integrity  of  the  muster-rolls,  but.  notwithstanding  these  enactments,  the  Commons 
committee  reported  to  the  House  in  174()that  the  men  granted  by  Parliament  never  were 
effective  notwithstanding  the  allowances  which  had  been  made  at  different  times  to  render 
them  so.  The  colonel  and  officers  had  a  strong  pecuniary  interest,  which  was  nominally 
under  the  control  of  the  commissaries  on  the  staff  of  the  army,  whose  commissions  were 
purchasable,  and  hence  the  gratuities  paid  to  these  officers  were  the  sequence  to,  if  not 
the  reward  for,  their  evasion  of  duty.  Either  men  were  alleged  to  be  absent,  without 
certificate  of  existence,  and  the  word  of  the  regimental  oflicer  was  accepted  in  lieu  there- 
of, or  tradesmen  were  dressed  up  in  regimentals  and  passed  as  soldiers. f  These  Articles 
are  thus  seen  to  present  the  history  of  an  endeavor  to  secure  accurate  and  impartial 
musters,  at  regularly  recurring  intervals,  of  the  troops  composing  tlie  Biitish  mili- 
tary establishnient.  Such  musters  have,  as  a  rule,  been  correctly  made  in  the  Array  of 
the  United  States  since  its  establishment ;  as  is  indicated  by  the  relative  infrequency  of 
trials  for  the  several  offenses  described  and  made  punishable  in  the   foregoing  Articles. 


*  CHode,  Military  Forces  of  the  Crown,  vol.  i.  pp.  112-124. 
t  Ibid.,  vol.  ii.  p.  9. 


3 68  MILITARY  LAW. 

accomplished  -atq  c-AXq^  muster-in  rolls'  and  inu ster-o id  rolls ""  ve&^Qci\\Q\y. 
There  may  also  be  musters  of  individuals,  as  distinguished  from  commands, 
as  is  the  case  when  an  enlisted  man  executes  a  contract  of  enlistment  or 
when,  in  time  of  war,  an  officer  of  volunteers  is  jiromoted  from  a  lower  to  a 

higher  grailo. 

Muster-rolls. — The  written  list  or  instrument  in  accordance  with  which 
the  verification  is  made,  and  which  constitutes  the  record  of  the  transaction, 
is  called  a  muster-roll;  the  purpose  of  which  is  to  set  forth  a  true  and  correct 
list  or  roll  of  the  members  of  the  command  undergoing  muster.  These  are 
prepared  by  the  commanding  officer  of  the  company  or  other  organization 
which  is  presented  for  muster,  who  is  responsible  for  the  correctness  of  the 
statements  which  they  contain.  Upon  the  rolls  so  prepared,  when  verified  by 
the  mustering  officer,  payments  to  the  command  are  based.  The  verifica- 
tion or  muster  is  conducted  by  an  officer  designated  for  the  purpose  in 
competent  orders,  who  is  known  as  the  musterii/fj  officer. 

Musters,  How  Made.— The  muster  of  a  command  is  generally,  but  not 
always,  preceded  by  an  inspection,  with  a  view  to  determine  its  disciplinary 
condition,  appearance,  and  military  efficiency,  but  this  is  no  part  of  the 
muster  proper.  When  the  presence  of  the  members  of  a  particular  com- 
mand or  organization  has  been  thus  verified,  together  with  that  of  their 
armament  or  equipment,  if  such  articles  be  included  in  the  muster,  the 
muster-rolls  are  signed,  and  the  fact  of  muster  is  certified  to  by  the  muster- 
ing officer.  The  muster-rolls  as  thus  completed  constitute  the  basis  of  all 
payments  for  the  period  covered  by  them,  and  also  become  the  basis  of 
subsequent  issues  of  stores  and  supplies  by  the  several  staff  departments  of 
the  Army.' 

False  Muster. — The  offense  of  false  muster,  which  is  not  described  in 
the  14th  Article  of  "War,  must  be  derived  from  the  definition  of  the  term 

'  The  record  of  a  formal  miister-ia  is  an  official  record,  duly  made  by  the  proper 
officers  pursuant  to  law,  of  an  official  act  performed  under  the  law.  It  is  therefore,  iu 
the  absence  of  fraud,  conclusive  evidence  of  the  facts  recorded,  and  no  other  evidence 
is  admissible  to  show  a  different  state  of  facts.  Great  uncertainty  would  ensue  could 
such  records  be  set  aside  by  parole  or  other  evidence.        Dig.  J.  A.  Gen.,  535,  par.  1. 

A  muster-in  is  not  necessarily  formal.  A  mere  enrollment  is  not  a  muster  in,  and 
does  not  place  the  party  in  the  military  service.  But  taking  up  a  man's  Jiame  upon  the 
rolls  and  accepting  his  services  as  a  soldier  is  a  constructive  musterin.     Thid.,  par.  2. 

^  The  muster-out  is  a  formal  discharge  from  the  Army,  making  the  soldier  a  civilian, 
and  terminating  all  military  authoritv  and  jurisdiction  over  him.  The  fact  that  the 
United  States  may  (fis  by  Sec.  1290,  Rev.  Sts.)  provide  transportation  to  their  homes 
and  subsistence  en  route  for  soldiers  after  muster-out  does  not  continue  them  in  the  mil- 
itary service.  (Sec.  4701,  Rev.  Sts.,  defines  the  period  of  service  of  soldiers  with  refer- 
ence to  the  application  of  the  pension  laws,  but  not  otherwise.)  See,  also,  the  60th 
Article  of  War.     Ibid,  r)2r>. 

»  The  requirement  of  Article  1.  Sectior.  4.  of  the  British  Code  of  1774,  that  regi- 
mental and  company  commanders  should  prepare  their  commands  for  muster  on  notice 
given  by  the  commissary  of  musters  or  one  of  his  deputies,  which  appeared  as  Article  1, 
Section  4,  of  the  American  Article'^  of  1776.  was  omitted  from  the  Articles  of  1806.  the 
office  of  commi-ssary  of  musters:  having  never  existed  in  the  Army  of  the  United  States. 
Musters  in  our  service  are  made  at  regularlv  recurrintr  intervals,  and  are  conducted  by 
officers  detailed  for  that  purpose  by  competent  authority. 


rUE  ARTICLES  OF   WAR.  369 

master  above  given.  It  may  be  said  to  consist  in  general  in  any  acquies- 
cence, on  the  part  of  the  mustering  otticor,  in  the  false  or  fraudulent  presen- 
tation or  enumeration  of  any  person  or  article  of  property  persented  for 
muster  on  the  otllcial  muster-rolls.  Under  this  head  would  fall  the  substi- 
tution before  the  mustering  otticer,  in  order  that  he  may  be  entered  on  the 
muster-roll,  "  of  one  man  or  horse  for  another,  whether  such  man  or  horse 
belong  to  the  service  or  not;  the  presenting  of  either  a  second  lime,  under  a 
different  description,  at  the  same  muster;  the  mustering  of  any  person  by 
a  wrong  name;  or  of  any  person  as  a  soldier  who  in  fact  is  not  a  soldier; 
or  of  recurning  officers  or  men  present  when  they  are  in  reality  absent  from 
the  regiment,  or  of  reporting  them  in  the  corps  or  comjiauy  after  tliey  are 
deceased  or  have  been  discharged ;  or  for  representing  as  etl'ective  boys  or 
others  who,  from  youth  or  inlirmity  or  some  other  disability,  are  declared, 
by  the  regulations  of  the  service,  as  inelfective."  ' 

Article  15.  Any  officer  toko  wilfully  or  throuyh  neglect  mffiers  to  be 
lost,  spoiled,  or  daniayed  any  military  stores  belonyiiiy  to  the  i'nited  States 
shall  make  good  the  loss  or  damage,  and  he  dismissed  from  the  service. 

This  provision  appears  as  Article  1,  Section  lo,  of  the  British  Code  of 
1774,  as  Article  1,  Section  12,  of  the  American  Articles  of  1776,  and  a.^ 
Xo.  :5r,  of  the  Articles  of  1800.  This  requirement  is  a  re-enactment  of  the 
corresponding  provision  of  the  Articles  of  1800  which  applied  to  commis- 
sioned officers  as  a  class  and,  in  addition,  to  storekeepers  and  commissaries." 
As  storekeejiers  and  commissaries  are  now  commissioned  officers,  they  are  no 
lono-er  referred  to  in  tlie  Article  by  title  of  office,  being  included  within  its 
scope  in  tlicir  character  as  commissioned  officers  of  the  Army.  The  Article 
recognizes  both  a  fiscal  and  a  disciplinary  accountability;  the  former  m  its 
provision  for  the  reimbursement  of  the  United  States  for  the  damage  or  loss;' 
the  other  in  the  clause  imposing  the  mandatory  punishment  of  dismissal 
upon  conviction  of  the  otTense.* 

Nature  of  the  Neglect,  etc.— As  willful  neglect  constitutes  an  essential 
element  of  the  offense  described  in  the  statute,  it  is  proper,  at  this  point,  to 

'  Rftmiiel,  301.  "  The  substitution  of  one  man  or  horse  for  another  that  he  may  be 
entered  .m  I  lie  muster-roll,  whether  Mich  man  or  horse  be  or  be  not  m  the  service  ;  the 
presentinsr  of  either  or  both  a  second  time  under  a  different  desenption  at  the  same 
muster;  the  musterinsx  any  person  under  a  wrontr  name;  mustering  officers  or  men 
present  when  in  fact  thev  are  absent  :  mnsterine  tliem  in  corps  or  comnnnv  after  tliey 
are  deceased  or  discliaiL'rd  ;  renresentine  a«  effective  boys  or  others  who  from  youth 
intirmitv  or  otlier  disabilitv.  are.  bv  reirulation«  of  service.  ineffective-.Mll  the«e  are  so 
manv  cases  of  false  musters.  an<l  have  been  so  deemed  by  militarv  courts        O  H'"'en   8». 

'  This  requirement  appears  as  Article  1.  Section  1.3.  of  the  RritHh  Code  '^f  17<4.  aa 
Article  1,  Section  12.  of  the  American  Articles  of  1776.  and  as  No.  36  of  the  Articles  of 
1806. 

»  See  Sections  1303  and  1304.  Revised  Statutes.  .      ^,        , 

<  The  requirement   of  Article  36  of  the   American  Code  of  1806  respectm?  the  sale 
embezzlement,  or  misapplication  of  militarv  stores  was  ""^i'^ed^";^"^-^"^  ?V^T°  j 
1«74.  possiblv  because  of  the  more  comprehensive  provisions  of  the  60th  Article,   m 
which  it  is,  in  fact,  merged. 


S70  MILITARY  LAW. 

determine  t^  amount  of  negligence  on  the  part  of  a  commissioned  officer  of 
the  Army  which  will  constitute  an  offense  under  the  Article.  A  neglect  to 
constitute  a  crime,  as  it  is  declared  by  this  Article,  must  have  more,  it  is 
apprehended,  fchan  a  negative  quality  about  it;  esj^ecially  as  it  involves,  in 
addition,  the  civil  responsibility  of  the  party  to  the  amount  of  the  loss  occa- 
sioned by  it.  A  neglect  to  induce  such  consequences  may  be  supposed  to 
partake  somewhat  of  a  positive  nature,  as,  for  instance,  in  the  non-observance 
of  special  instrmtions  or  general  regulations  in  reference  to  the  custody  or 
disposal  of  the  things  in  charge;  or  in  contempt  of  usage  and  custom  of 
office,  in  the  di>»cliarge  of  which  the  trust  arises,  in  respect  to  the  particular 
charge;  or,  wh'^n  there  are  no  instructions,  regulations,  or  customs  to  guide 
the  officer  in  fhe  custody  of  the  matter  or  thing  entrusted  to  him,  in  a 
flagrant  and  gross  omission  of  care,  which  is  usually  taken,  in  legal  intend- 
ment, as  an  evidence  of  fraud.  Any  inferior  degree  of  neglect,  though 
implying  an  absence  of  a  special  and  refined  care,  which  more  considerate  or 
wary  persons  ure  in  the  habit  of  using  in  their  own  affairs,  would  not 
amount,  it  should  seem,  to  that  culpable  or  criminal  negligence,  so  as  to 
expose  the  party  guilty  of  it  to  the  multiplied  penalties  of  the  Article.' 

Stoppages  to  Reimburse  the  United  States. — The  stoppages  contemplated 
in  this  Article  are  also  regulated  in  part  by  Sections  1303  and  1304  of  the 
Revised  Statutes,  which  provide  that  "  the  cost  of  repairs  or  damages  done 
to  arms,  equipments,  or  implements  shall  be  deducted  from  the  pay  of  an 
officer  or  soldier  in  whose  care  or  use  the  same  were  when  such  damages 
occurred,  if  said  damages  were  occasioned  by  the  abuse  or  negligence  of  said 
officer  or  soldier;" '  and  that  "  in  case  of  deficiency  of  any  article  of  mili- 
tary supplies,  on  final  settlement  of  the  accounts  of  any  officer  charged  with 
the  issue  of  the  same,  the  value  thereof  shall  be  charged  against  the  delin- 
quent and  deducted  from  his  monthly  pay,  unless  he  shall  show  to  the  satis- 
faction of  the  Secretary  of  War,  by  one  or  more  depositions  setting  forth  the 
circumstances  of  the  case,  that  said  deficiency  was  not  occasioned  by  any 
fault  on  his  part.  And  in  case  of  damage  to  any  military  supplies  the  value 
of  such  damage  shall  be  charged  against  such  officer  and  deducted  from  his 
monthly  pay,  unless  he  shall  in  like  manner  show  that  such  damage  was  not 
occasioned  by  any  fault  on  his  part."  ' 

Stoppages.— The  term  "stoppage"  has  already  been  defined."  It  has 
also  been  seen  that  the  pay  of  an  officer  or  soldier  cannot  be  subjected  to 
stoppage  except  by  the  authority  of  a  statute  or  regulation  specifically 
authorizing  the  same,  or  of  a  sentence  of  court-martial  imposing  a  forfeiture 
or   ine  as  a  punishment,  or  where  the  party  has  become  indebted  to  the 


'  Samuel,  516. 

2  Section  1303,  Revised  Statutes. 

"  Section  1304   Reviseil  Statutes. 

*  See  the  title  Forfeiture  iu  the  chapter  entitled  Punishments. 


TUE  ARTICLES  OP    WAR.  371 

United  States  on  account.  In  a  case  of  supposed  liability  to  stoppage  result- 
ino-  from  a  neglect  or  an  act  chargeable  as  a  military  offense,  and  as  to 
which  the  facts  are  disputed,  it  is  in  general  preferable  to  have  the  case 
investigated  and  the  actual  pecuniary  liability,  if  any,  lixed  by  a  trial  by 
court-martial.  A  superior  is  not  authorized  to  stop  against  the  pay  of  an 
inferior  the  value  of  property  charged  to  have  been  criminally  misappropri- 
ated.' iS^or  is  it  authorized  to  stop  against  the  pay  of  an  officer  or  soldier 
an  amount  of  personal  indebtedness,  to  another  officer  or  soldier,  even  though 
such  indebtedness  may  have  grown  out  of  the  relations  of  the  military  ser- 
vice. Thus  an  officer's  pay  cannot  legally  be  stopped,  for  example,  with  a 
view  to  the  reimbursement  of  enlisted  men  who  have  deposited  money  with 
him  for  safe-keeping,  and  which  he  has  failed  to  return  when  required,  the 
officer  being  accountable  for  the  same  in  o.  personal  capacity  only.^ 

It  has  been  seen  that  pay  forfeited  by  sentence  of  a  court-martial  is,  in 
contemplation  of  law,  returned  from  the  appropriation  for  the  support  of 
the  Army  to  the  general  treasury,  and  becomes  public  money,  and,  being  in 
the  treasury,  cannot  be  withdrawn  and  restored  to  the  party  from  whose 
pay  it  was  taken  by  way  of  forfeiture  without  an  act  of  appropriation, 
or  other  authority  of  Congress.  A  forfeiture  thus  executed  cannot  therefore 
be  remitted,  or  restored  by  the  pardoning  power,  whatever  be  the  merits  of 
the  case.' 

A  stoppage  is  distinguished  from  a  forfeiture  or  fine,  and  an  executive 
stoppage,  or  stoppage  by  order,  cannot  be  imposed  for  an  offense.  But  under 
par.  1390,  Army  Regulations  of  1895,  it  is  entirely  legal  to  stop  against  a 
soldier's  pay  an  amount  required  to  reimburse  the  United  States  for  loss 
on  account  of  damage  done  to  public  property,  while  at  the  same  time  bring- 
ing the  soldier  to  trial  by  court-martial  for  the  offense  involved.' 

Pay  due  an  officer  or  soldier  can  legally  be  stopped  only  by  reason  of  an 
accountability  to  the  United  States."  Thus  it  cannot  be  stopped  to 
reimburse  a  hospital  fund  for  money  stolen,  such  fund,  like  a  company 
fund,  not  being  public  money.  It  cannot  legally  be  stopped,  for  example, 
to  reimburse  a  telegraph  company  for  moneys  received  by  a  sergeant  of  the 
then  Signal  Corps  for  transmitting  private  messages  over  its  line,  the  same 
not  being  a  line  "  operated  by  the  United  States"  in  the  sense  of  the  Act 
of  March   3,    1883,'   and    the  indebtedness  of  the  sergeant   being  to   the 


'  Dis;.  J.  A.  Gen.,  719,  par.  1. 
'  Ibid. ,  720,  par.  2. 

*  Ibid.,  421,  par.  14.  Par.  263,  A.  R.,  1895,  requiring  deductions  to  be  made  from 
the  pay  of  soldiers  in  favor  of  "  tradesmen, "  who,  when  "  relieved  from  ordinary  mili- 
tary duty,"  are  authorized  to  make  alter,  or  repair  soldiers'  uniforms,  held  to  autliorize 
stoppao'es  not  only  for  dues  to  tailors  who  are  in  the  military  service,  but  also  for  dues 
of  civiUan  tailors.     Ibid.,  720,  par.  4.     See,  also,  Circular  8.  A.  G.  O.,  1896. 

*  Ihid.,  720,  par.  3. 

»  Ibid.,  721.  par.  8  ;  16  Opiu.  Att.-Gen.,  477. 

*  22  Stat,  at  Large.  616. 


372  MI  LIT  ART  LAW. 

tele2;rapli  compaii}'  only,  not  to  the  United  States.  So  held  that  it  would 
not  be  legal  to  stoj-)  the  pay  of  an  officer  for  tlie  amoimt  of  a  local  bounty 
alleged  to  have  been  neglected  to  be  paid  over  by  him  to  an  enlisted  volun- 
teer on  whose  account  it  was  received.  An  officer  or  soldier  cannot  legally 
be  tnulcted  of  any  part  of  his  pay  for  the  satisfaction  of  a  private  claim.' 

Article  16.  Any  enlisted  man  who  sells  or  wlUfulhj  or  through  neglect 
wastes  the  ammiuiition  delivered  out  to  him  shaU ' U  jnuiished  as  a  conrt- 
martial  may  direct. 

This  provision  appears  as  Article  2,  Section  13,  of  the  British  Code  of 
1774,  as  Article  2,  Section  12,  of  the  American  Articles  of  1776,  and  as 
No.  37  of  the  Articles  of  1806.  Prior  to  the  re-enactment  of  the  Articles 
in  1874,  only  a  regimental  court-martial  was  authorized  to  take  jurisdiction 
of  the  offense  set  forth  in  the  statute.  This  Article  applies  expressly  to 
enlisted  men  and,  unlike  Article  15,  is  entirely  disciplinary  in  character;  it 
is  also  much  less  extensive  in  its  operation,  being  limited,  by  the  express 
terms  of  the  statute,  to  the  sale  or  waste  of  ammunition  only. 

Article  17.  Any  soldier  who  sells,  or  through  neglect  loses  or  spoils,  his 
horse,  arms,  clothing,  or  accoutrements  shall  be  punished  as  a  court-martial 
may  adjudge,  subject  to  such  limitation  as  may  be  prescribed  hy  the  Presi- 
dent by  virtue  of  the  ptower  vested  in  Am." 

This  appears  as  Xo.  38  of  the  Articles  of  1806,  as  Article  3,  Section  13, 
of  those  of  1776,  and  as  Article  3,  Section  13,  of  the  British  Code  of  1774. 
It  was  re-enacted  in  its  present  form  by  the  Act  of  July  27,  1892.'  Prior 
to  such  re-enactment  the  Article  required  an  accused  person  upon  convic- 
tion to  undergo  such  weekly  stoppages  (not  exceeding  the  half  of  his  pay) 
as  a  court-martial  "  shall  judge  sufficient  for  repairing  the  loss  or  damage; 
and  to  suffer  confinement  or  such  other  corporal  punishment  as  his  crime 
shall  deserve."  As  the  loss  to  the  United  States  was  not  easily  or  definitely 
ascertainable,  and  as  no  form  of  corporal  punishment  except  imprisonment 

'  Dig.  J.  A.  Gen.,  731,  par.  8.  A  soldier  vrlio  deserted  from  Jefferson  Barmcks  sur- 
rendered at  Chicago,  where  the  sum  of  four  dollars  was  expended  by  the  United  States 
for  his  meals  before  he  could  be  returned  to  his  station.  Held  that  this  sum,  as  substan- 
tially included  within  the  item  of  "  expense  of  apprehending  deserter,"  specihed  in  par. 
1390.  A.  R.  of  189o,  was  properly  charged  against  him  on  the  muster  and  pay  rolls.  Ihid., 
par.  0. 

The  amount  of  the  allowances  of  the  witnesses,  or  other  expense  attending  the  trial, 
by  court-martial,  of  a  soldier,  cannot  legally  be  stopped  against  his  pay,  whatever  the 
offensf  of  which  he  may  be  convicted.     Ihid.,  par.  7. 

Held  that  the  Government  was  entitled  to  retain  so  much  of  a  soldier's  pay  as  would 
cover  his  indebtedne.ss  to  it,  even  though  the  pay  due  consist  in  whole  or  in  part  of 
"  detained  "  pay.  (The  punisliment  of  detaining  pay  has  now  been  abrogated  by  the 
recent  G.  O.  25  of  1894.)     Dig,  J.  A.  Gen.,  720.  par.  5. 

Construing  Sec.  1766,  Rev.  Sts.,  as  applying  only  to  bonded  disbursing  ofticers,  held 
that  a  tine  of  one  hundred  dollars,  imposed'  by  a  civil  court  upon  a  soldier  for  a  viola- 
tion of  the  postal  laws,  could  not  legally  be  stopped  aL'-ainst  his  pay  under  that  section. 
But.  independently  of  this  statute,  the  pay  of  an  officer  or  soldier  who  is  in  arrears 
to  the  United  States  may  always  be  legally  withheld  till  the  indebtedness  is  satisfie-i. 
Ibid..  721,  par.  9.  See.  a'lsf),  ibid.,  3f)3,  par.  3. 
'  Act  of  July  27,  1892  (27  Stat,  at  Large,  277). 


THE  ARTICLES  OF  WAR.  373 

coukl    lawfully  be  inflicted,   the  amendment  above  described  was  deemed 

necessary. 

Like  Article  10,  this  Article  is  quite  independent  of  the  regulations 
relating  to  boards  of  survey.'  The  latter  pass  upon  questions  of  penunary 
respumibiUty  for  the  loss',  etc.,  of  public  property.  The  court-martial, 
under  this  Article,  simply  imposes punishnmii.'' 

The  description,  "his  horse,  arms,  clothing,"  etc.,  refers  to  articles 
which  are  regularly  issued  to  the  soldier  for  his  use  in  the  service  and  with 
the  safe-keepTng  of  which  he  is  charged.  Jlis  property  in  them  is  qualified 
by  the  trust  that  he  cannot  dispose  of  them  while  he  is  in  the  military  ser- 
vice, and  can  only  use  them  for  military  purposes.'  Improper  dispositions 
of  property  in  the  charge  and  use  of  soldiers,  other  than  those  indicated  in 
the  Article,  will  in  general  properly  be  charged  under  Article  02.* 

Only  three  offenses  are  made  punishable  by  this  Article:  selling,  through 
neglectlosing,  through  neglect  spoiling.  Any  other  form  of  wrongful  dis- 
position should  be  made  the  subject  of  a  charge  under  Article  GO  or  02. 
The  selling,  losing,  etc.,  of  objects  other  than  those  mentioned  in  this 
Article  should  be  charged  under  Article  02." 


>  See  Article  60.  Army  Retriiliitions  of  1895  ;  see,  also,  the  article  entitled  Boards  of 
/Su?'WV  in  the  chapter  eniitlelMiMTAKV  BoAUDs,  ETC  ,       ,        ,      , 

«  Dl'^  J.  A.  Geii.,  28  par  1.  Wliere  a  trial  13  had,  the  proceedings  of  a  board  of 
survev  "already  ordered  in  the  same  case,  will  not  he  conipi'trnt  evidence  to  prove  tlie 
fact  of  the  loss,  etc.  charged.  G.  C.  M.  O.  43.  Depl.  of  the  .Missouri,  1877;  do.  15. 
Dept.  of  Texas,  1877.  ^^^^    ^ 

The  present  17th  Article  (as  amended  by  the  Act  of  July  27.  1892)  does  not 
authorize  a  stoppage  or  forfeiiure  of  pay  to  reimburse  the  United  States.  The  stoppage 
which  was  enjoined  by  the  old  form  of  tlie  Article  is  dropped  entirely  from  the  ]iresent 
statute.  This  provides  for  punishment  only— does  not  provide  any  means  of  reimb\irs- 
in"-  the  api)ropriation  out  of  which  tlie  lost.  etc..  property  was  paid  for  or  of  repairing 
the  loss  or  damage  as  such.  So  /aW  (April,  1893)  that  a  sentence,  upon  a  conviction 
under  this  Article,  which  adjudged  a  .stoppige  of  pay  "  to  reimburse  the  Lnited  Stales 
for  the  value  of  the  clothing  alienated"  was  unauthorized  and  inoperative.  Diir.  J.  A. 
Gen.,  25,  par.  7. 

//«/(/ (December,  1866)  that  the  provisions  of  sec.  23.  Act  of  March  3,  1863.  prohib- 
iting llie  .sale,  etc..  of  their  arms,  etc.,  by  .soldiers,  and  declaring  that  no  right  of  prop- 
erty or  possession  should  be  actpiired  thereby,  etc.,  were  not  limited  in  their  operation 
to  the  period  of  the  war.  but  were  still  in  force,*  and  that  an  ollicer  of  the  army  wo\dd 
therefore  be  authorized  to  seize  arms,  etc.,  disposed  of  contrary  to  such  proMbition 
whenever  and  wherever  found.  But  inasmuch  as  there  have  been  sundry  authorized 
sales  of  arms  and  other  ordnance  .stores  since  the  end  of  the  war,  adrised  that  officers 
before  making  seizures,  should  assure  themselves  that  the  parties  in  possession  have  not 
ucqinred  title  in  a  legal  manner.       Tbid.,  684. 

^  I)i'^  J.  A.  Gen.,  23,  ))ar.  2.  See  next  note.  Compare  ruling  of  reviewing  officer 
In  G.  6T35,  Dept.  of  the  East,  1869  ;  and  see  also  do.  31,  Dept.  of  the  South,  1877  ; 
G.  C.  M.  O.  15,  Dept.  of  Texas,  1880. 

*  Ibid.,  24,  par.  3.  "  Unlawfully  disposing  of  "  (or  "  otherwise  unlawfully  disposing 
of  •■)  clothing,  arms,  etc.,  is  not  a  proper  form  for  the  charge  under  this  Article.  A  charge 
under  this  Article  should  not  be  expressed  in  the  alternative— as  that  the  accused  "sold" 
or  "through  neglect  lost."  'I'lie  selling,  through  neglect  losing,  and  through  neglect 
spoiling  are  distinct  olTenses  and  are  to  be  so  charged.     Ibid.,  par.  5. 

'  Ibid.,  par.  4.     Held  that  a  selling  or  losing  of  llie  following  articles  was  not  punish- 

*  See  these  provisions  as  now  ineorporateri  in  the  Revised  Statutes,  in  Sections  \24i  aiul  37-)8.  Tli*" 
further  provision  of  the  original  Act  making  punishable  with  fine  and  imprisonment  persons  purcha* 
ing  from  soldiers  tlieir  anus,  equipuicms,  elothirif?,  etc.,  lias  not  been  retained  in  the  Kev.  Sis. 


374  MILITARY  LAW. 

Clothing  issued  and  charged  to  a  soldier  is  not  now  (as  it  was  formerly) 
regarded  as  remaining  the  property  of  the  United  States.  It  is  now  consid- 
ered as  becoming,  upon  issue,  the  property  of  the  soldier,  although  his  use 
of  it  is,  for  purposes  of  discipline,  qualified  and  restricted.  Thus  he 
commits  a  military  offense  by  disposing  of  it  as  specified  in  this  Article, 
though  tlie  United  States  may  suffer  no  loss.' 

Article  18.  Any  officer  commanding  in  any  garrison^  fort,  or  barracks 
of  the  United  States  who,  for  his  private  advantage,  lays  any  duty  or  impo- 
sition u2)on,  or  is  interested  in,  the  sale  of  any  victuals,^  liquors,  or  oilier 
necessaries  of  life  brought  into  such  garrison,  fort,  or  barracks  for  the  use 
of  the  soldiers,  shall  be  dismissed  from  the  service. 

The  57th  Article  of  the  Prince  Rupert  Code,  which  provided  that  "  no 
officer  or  souldier  shall  be  a  victualler  in  the  Army  without  consent  and 
allowance  of  Our  General,  or  of  the  officer  in  chief  of  the  regiment,  upon 
pain  of  being  jiunished  at  discretion,"  would  seem  to  indicate  that  the  prac- 
tice which  is  prohibited  in  the  18th  Article  had,  at  one  time,  been  authorized 
in  the  British  service,  with  the  sanction  or  approval  of  competent  superior 
authority.  The  present  Article,  which  was  adopted  without  substantial 
change  from  the  corresponding  British  Article,  first  appeared  as  Article  -1, 
Section  8,  of  the  American  Articles  of  177G,  and  was  re-enacted  as  No.  ol 
of  the  Articles  of  1806. 

It  is  the  purpose  of  this  Article  to  insure  the  supply  of  provisions  and 
other  supplies  to  soldiers  free  from  all  unauthorized  taxation  and  from  the 
influence  of  officers  in  command  of  the  military  posts  and  stations  of  the 
United  States.  "  The  letting  out  of  houses  to  sutlers  at  an  exorbitant  price, 
or  the  connivance  at  the  act  in  others,  or  the  laying  of  any  duty  or  imposi- 
tion on  victuals,  etc.,  brought  into  garrison,  for  the  private  advantage  of  the 
c^overnor  or  commanding;  officer,  are  offenses  of  so  clear  and  definite  a  char- 
acter  as  not  to  demand  any  illustration.  But  the  remaining  offense — the 
being  interested  in  the  sale  of  victuals  or  merchandise,  etc. — is  not  so  per- 
spicuous or  so  easily  discernible  as  the  others  immediately  preceding.  The 
interest  here  intended  is  not  only  a  direct  interest,  such  as  a  proprietorship 
or  part  proprietorship  in  the  articles  sold,  but  a  collateral,  indirect,  and  even 
very  remote  interest  in  the  objects  of  sale."  ^ 

able  under  Article  17.  viz. :  sheets,  pillows,  pillow-cases,  inuttress-covcrs,  slieltor-tent, 
barrack-batr,  ereatcoat-strup,  tin  cup,  spoon,  knife,  fork,  meat-ralion  can,  cartridges. 
Diir.  .T.  A.  Gen.,  24.  i)ur.  4. 

Of  such  unlawful  disposition  of  public  property  the  pawning  of  a  revolver  is  an 
example.  G.  C  M.  O.  77,  Dept.  of  tlie  Missouri,  1874.  So  the  gambling  away  of 
clothing.  G.  C.  M.  O.  41.  Dept.  of  Texas,  1873.  So  the  spoiling  by  a  bugler  of  his 
bugle.     G.  C.  M.  O.  36,  War  Dept.,  1870. 

'  Dig.  J.  A.  Gen.,  34,  par.  (5. 

'  Samuel.  445-447.  "It  was  so  determined  bva  general  court-martial  held  at  Cawn- 
pore,  in  the  East  Indies,  in  1811,  on  tlie  trial  of  Lieutenant-Colonel  H.  G.  Wade,  of  his 
Majesty's  8th  Liglit  Dratjonns,  on  the  express  cluirge  of  having  violated  this  Article  iu 
having  exacted  and  received  from  Daniel  Clarke,  licenseil  sutler  in  the  cautoumenls  ut 


THE  ARTICLES  OF   WAR.  375 

The  ofTense  here  described  is  a  form  of  extortion  which  may  be  defined 
as  a  crime  committed  by  an  officer  of  the  hiw  who,  under  color  of  his  office, 
unlawfully  and  corruptly  takes  any  money,  or  thing  of  value  that  is  not  due 
liim,  or  more  than  is  due,  or  before  it  is  due.  Tlie  officer  must  unlawfully 
and  corruptly  receive  such  money  or  article  of  value  for  his  own  benefit  or 
advantage.'  The  money  so  obtained,  having  been  received  and  held  without 
authority  of  law,  cannot  become  the  property  of  its  possessor;  the  lawful 
title  thereto  continuing  in  the  person  from  whom  it  was  extorted.  The  law, 
therefore,  creates  an  obligation  to  refund  money  so  illegally  paid,  the  obli- 
gation to  repay  accruing  at  the  date  of  the  extorsive  payment.' 

Article  19.  Any  officer  who  uses  contemjduous  or  disrespectful  words 
against  the  President,  the  Vice-President,  the  Congress  of  the  United  States, 
or  the  chief  magistrate  or  legislature  of  any  of  the  United  States  in  which  he 
is  quartered  shall  he  dismissed  from  the  service,  or  otherivise  punished  as  a 
court-martial  may  direct.  Any  soldier  who  so  offends  shall  be  jjunished  as  a 
court-martial  may  direct. 

This  appears  as  No.  5  of  the  Articles  of  180G,  as  Article  1,  Section  2,  of 
those  of  177(j,  and  as  Article  1,  Section  2,  of  the  British  Code  of  1774.  In 
the  British  Article  the  offense  is  made  to  consist  in  the  "use  of  traitorous 
or  disrespectful  words  against  our  Royal  Person  or  any  of  our  Roval 
Family."  As  there  was  no  executive  head  to  the  Government  under  the 
Revolutionary  Congress,  or  to  that  under  the  Articles  of  Confederation,  the 
offense,  in  the  Articles  of  1776,  was  made  to  consist  in  the  use  of  such  words 
against  "  the  authority  of  the  United  States  in  Congress  assembled,  or  the 
legislature  of  any  of  the  United  States  in  which  the  offender  may  be  quar- 


Ciiwnpore,  *  *  *  two  bribes  of  one  hundred  rupees  each,  *  *  *  in  cousideraliou 
of  liis  havini?  allowed  tlie  said  Clarke  to  sell  spirituous  liquors  in  tlie  lines  of  the  corps 
under  his  command.  The  court  pronounced  the  accused  guilty  of  the  circumstances 
charged,  and  sentenced  him  to  be  cashiered.  Tlie  interest  of  the  officer  was,  in  this 
instance,  so  remote,  and  so  trivial  in  itself,  being  in  its  utmost  value  short  of  twenty-live 
pounds,  that  it  could  not  be  supposed  to  have  operated  in  any  opjjrossive  degree  on  the 
sale  of  the  liquors  to  the  soldiery,  as  the  sum  exacted  from  the  sutler  might  be  repaid  to 
Lim,  in  the  course  of  his  dealings,  by  the  imposition  of  so  slight  an  'iiddition  on  the 
articles  retailed  as  to  be  scarcely  percei)tible  to  the  consumer.  But  the  quantum,  or 
relation  of  the  interest,  is  not  so  much  an  ingredient  of  the  offense  as  the  having  any 
interest  at  all  engaged,  which  may  set  the  officer's  private  advaiUage  at  variance  with  his 
public  duty.  In  this  view  the  most  tritting  anutunt  capaljle  of  being  traced  to  the 
pocket  of  him  who  takes  it  may  be  an  espial  inducement  to  criminal  connivaiici- with 
the  highest  conceivable  bribe,  which  is  not  to  be  weighed  in  the  scale  or  estimation  of 
the  giver,  or  of  any  third  party,  but  of  the  receiver  alone  ;  it  is  the  wages  of  sin,  and  of 
Lis  own  settling."    Ibid. 

'  U.  S  vs.  Deaver.  14  Fed.  Rep.,  595;  Com.  vx.  Wheatley,  6  Cow..  661  ;  Com.  vs. 
Mitchell,  3  Bush,  25  ;  Com.  vs.  Bagley,  7  Pick.,  246. 

*  U.  S.  vt.  Bank  of  Washington,  6  Pet.,  19.  Section  5481  of  the  Revised  Statutes 
contains  the  general  provision  of  law  upon  this  snhjcct,  which,  as  will  be  seen,  is  some- 
what more  extensive  in  its  scope  than  the  18lh  Article  of  War:  "Every  officer  of  the 
United  States  who  is  guilty  of  extortion  under  color  of  his  office  shall  be  punisijcd  by  a 
fine  of  not  more  than  live  hundred  dollars,  or  by  imprisonment  not  more  than  one  vear, 
except  those  officers  or  agents  of  the  United  States  otherwise  different  I  v  ami  ^peciHlly 
provided  for  in  subsequent  sections  of  this  chapter." 


376  MILITARY  LAW. 

tered."     The  words  "  the  President,  the  Vice-President "  were  added  io 
the  Article  in  the  revision  of  1806. 

When  a  trial  of  an  officer  or  soldier  has  been  resorted  to  under  tliia 
Article,  it  has  usually  been  on  account  of  the  use  of  "contemptuous  or  dis- 
respectful words  against  the  President,"  or  the  government  mainly  as  repre- 
sented by  the  President.  The  deliberate  employment  of  denunciatory  or 
contumelious  language  in  regard  to  the  President,  whether  spoken  in  public, 
or  published  or  conveyed  in  a  communication  designed  to  be  made  public, 
has  in  repeated  cases  been  made  the  subject  of  charges  and  trial  under  this 
Article;'  and  where  taking  the  form  of  a  hostile  arraignment,  by  an  officer, 
of  the  President  or  his  administration  for  the  measures  adopted  in  carrying 
on  the  late  war — a  juncture  when  a  peculiar  obedience  and  deference  were 
due  on  the  part  of  the  subordinate  to  the  President  as  executive  and  com- 
mander-in-chief— was  in  general  punished  by  a  sentence  of  dismissal.  On 
the  other  hand,  it  has  been  held  that  adverse  criticisms  of  the  acts  of  the 
President,  occurring  in  political  discussions,  and  which,  thougli  characterized 
by  intemperate  language,  were  not  apparently  intended  to  be  disrespectful  to 
the  President  personally  or  to  his  office,  or  to  excite  animosity  against  him, 
were  not  in  general  to  be  regarded  as  properly  exposing  officers  or  soldiers 
to  trial  under  this  Article.  To  seek  indeed  for  ground  of  offense  in  such 
discussions  would  ordinarily  be  inquisitorial  and  beneath  the  dignity  of  the 
Government.' 

Article  20.  Any  officer  or  soldier  wlio  hehaves  himself  with  disrespect 
toward  his  commanding  officer  shall  he  lyunished  as  a  court-martial  may 

direct. 

This  requirement  appears  in  somewhat  less  comprehensive  terms  as 
Article  11  of  tlie  Prince  Rupert  Code,  where  it  is  provided  that  "if  any 
officer  or  souldier  shall  behave  himself  disrespectfully  towards  Our  General, 
Lieutenant  General,  or  other  Chief  Commander  of  the  Army,  or  speaks 
words  tending  to  his  harm  or  dishonour,  he  shall  be  punished,  according  to 
the  nature  and  quality  of  his  offense,  by  the  judgment  of  Our  General 
Court-^Iartial."  The  provision  appears  as  Article  2,  Section  2,  of  the 
British  Code  of  1774,  and  as  Article  2,  Section  2,  of  the  American  Articles 
of  1776.  In  the  British  Article  of  1774  the  offense  may  be  committed  by 
"  any  officer  or  soldier  who  shall  behave  himself  with  contempt  or  dis- 
respect towards  the  general  or  other  commander  in  chief  of  Our  Forces  "; 
in  the  American  Article  of  1776,  however,  the  offense  is  committed  by  "  any 
officer  or   soldier  who    may  behave   himself  with   contempt   or  disrespect 


>  Diff  J  A  Gen  25.  par.  1.  Seo  cases  in  G.  C.  M.  O.  43.  War  Der>t..  1863  :  G.  O. 
171  Army  of  the  Potomac,  1863;  do.  23,  icl.  1863;  do.  52.  Middle  Dept.,  1863:  do. 
119'  Dept.  of  the  Ohio.  1803  ;  do.  33,  Dept.  of  the  Gulf.  1863  ;  do.  68.  Dept.  of  Wa.sh- 
ino-ton,  1864  ;  do.  86,  Northern  Dept.,  1864 ;  do.  1,  id.,  1865  ;  do.  29,  Dept.  of  No.  Car., 
1865. 

"■  Dig.  J.  A.  Gen.,  25,  par.  1. 


THE  ARTICLES  OF   WAR.  877 

towards  tlie  General  or  other  Commander-in-Chief  of  the  forces  of  the 
United  States."  In  the  0th  of  the  Articles  of  1800  the  scope  of  the  offense 
is  no  longer  restricted  to  the  commander-in-chief,  but  is  extended  so  as  to 
include  tlie  comnuinding  oHicer  of  the  accused.  In  the  re-enactment  of 
I87i  the  offense  is  made  to  consist  in  "  disrespect  "  only. 

The  offense  here  made  punishable  is  characterized  in  general  terms  and  is 
not  specifically  detiued  in  tlie  Articles  of  War.  it  may  consist  in  either  be- 
havior, acts,  or  utterances  which  are  explicitly  set  forth  in  the  charges  and 
specilications,  and  which  must  be  established  in  evidence  by  the  testimony 
of  witnesses,'  It  must  be  shown  in  evidence  under  the  charge  that  the 
officer  offended  against  was  the  "  commanding  otlicer  "  of  the  accused,'  The 
commanding  officer  of  an  ollicer  or  soldier,  in  the  sense  of  this  Article,  is 
])roperly  the  superior  who  is  authorized  to  require  obedience  to  his  orders 
from  such  officer  or  soldier,  at  least  for  the  time  being.' 

It  is  for  the  court  to  determine  from  the  evidence  submitted  whether  the 
acts,  utterances,  or  conduct  so  established  constitute  disrespect  toward  the 
commanding  officer  within  the  meaning  of  the  Article,  It  will  be  observed 
that  no  specific  intent  is  alleged  in  the  Article  as  essential  to  constitute  the 
offense;  it  is  therefore  not  necessary  to  a  conviction  under  it  that  the  dis- 
respectful conduct  charged  in  a  particular  case  should  have  been  due  to 
deliberate  design,  A  want  of  civility  is  equally  punishable  with  an  act  of 
premeditated  disrespect. 

It  is  the  purpose  of  the  Article,  therefore,  to  insure  respect  for  the  person 
and  office  of  the  individual  standing,  in  respect  to  the  accused,  in  the  rela- 
tion of  commanding  officer;  and  to  protect  him  from  such  acts,  utterances, 
or  behavior,  whether  arising  from  rudeness  of  manner,  want  of  civility,  or' 
deliberate  design,  as  are  in  themselves  disrespectful,  or  are  calculated  to 
lessen  the  reputation  of  such  commander,  or  to  affect  injuriously  the  dignity 
attaching  to  his  rank  or  station  in  the  military  service. 

'  Tlie  disrespect  here  indicated  raav  consist  in  acts  or  words  ;  *  and  the  particular  acts 
or  words  relied  upon  as  eonstifntin<;  the  offense  should  properly  be  set  forth  in  substance 
in  the  sperifiration.t     Di<r.  J.  A    G(>ii.,  20,  par.  1. 

'  G.  O.  58.  Dcpt.  of  Dakota,  1S71. 

'  Di;r.  .1.  A.  Gen.,  2fi.  p:ir.  1.  Tlius  whore  a  battalion  was  temporarily  detached  from 
a  regiment  and  placed  under  the  orders  of  the  commander  of  a  portion  of  ;lie  Army 
distinct  from  that  in  wlu'ch  the  main  part  of  the  resriment  was  incltided,  /it'W  that  it  was 
the  commaiKler  of  this  portion  who  was  the  comniandinir  othcer  of  the  dctachmoiit;  and 
that  the  use  hv  an  officer  of  such  detachment  of  disrespectful  laniruaL'e  in  reference  to 
the  rei^imental  commander  (who  had  remained  with  and  in  command  of  the  main  body 
of  the  resriment)  was  properly  chargeable  not  under  this  Article,  but  rather  under  the 
62d.     I  hid. 

Held  that  disrespectful  lansuasre  used  in  resrard  to  his  captain  by  a  soldier,  when 
detached  from  his  companv  and  sorvinij  at  a  hospital,  to  the  surtreon  in  change  of  wiiich 
he  had  been  ordered  to  report  for  duty,  was  an  offense  cognizable  by  court-martial,  not 
under  this  Article,  but  under  Article  62.     /6?'rf.,  par.  2. 

«  a.  O.  44,  Dept.  of  Dakota,  1872.  And  see  G.  C.  M.  O.  28,  War  Dept.,  1875;  Q.  O.  47.  Dept.  of  the 
Platt:«'.  1S70. 

t  (}.  C.  M.  O.  35,  Dept.  of  the  Missouri,  1872. 


378  MILITARY  LAW. 

Article  21.  Any  officer  or  soldier  ivJw,  on  any  'pretense  whatsoever y 
strikes  his  superior  officer,  or  draws  or  lifts  up  any  iceapon,  or  offers  any 
violence  against  him,  being  in  the  execution  of  his  office,  or  disoleys  any  law- 
ful command  of  his  superior  officer,  shall  suff'er  death,  or  such  other  pun- 
ishment as  a  court-martial  may  direct. 

This  Article,  embodying  as  it  does  tlie  most  important  principle  known 
to  military  law,  seems  to  have  been  derived,  in  its  present  form,  from 
Article  IG  of  the  Prince  Rupert  Code  in  the  shape  of  a  requirement  that  "  if 
any  inferiour  Officer  or  Souldier  shall  refuse  to  obey  his  superiour  officer,  or 
shall  quarrell  Avitii  him,  he  shall  be  cashiered,  or  suffer  such  punishment  as 
a  Court-Martial  shall  think  fit.  But  if  any  Souldier  shall  presume  to  resist 
any  Officer  in  the  execution  of  his  office,  or  shall  strike,  or  lift  up  his  hand 
to  strike,  or  shall  draw,  or  offer  to  draw,  or  lift  up  any  weapon  against  his 
superiour  officer,  upon  any  pretense  whatsoever,  he  shall  suffer  death,  or 
other  condign  punishment,  as  Our  General  Court-Martial  shall  think  fit." 
This  requirement  was  substantially  repeated  in  successive  Articles  of  War 
until  1717,  when,  on  account  of  its  extreme  importance  to  discipline,  it  was 
embodied  for  the  first  time  in  the  Mutiny  Act,  in  a  provision  imposing  the 
penalty  of  death  iipon  any  officer  or  soldier  who  should  refuse  "to  obey  the 
military  orders  of  his  superior  officer  " ;  no  limitation  being  placed,  however, 
upon  the  legality  of  the  orders.'  In  this  form  the  bill  was  opposed  in  Par- 
liament, and  a  protest  against  its  passage  was  ordered  to  be  entered  upon  the 
Journal  of  the  House  of  Lords.*  From  the  year  1718  to  the  year  1749  the 
enactment  ran  thus:  "  any  lawful  command  of  his  superior  officer";  but 
these  words  gave  rise  to  controversy,  and  in  1733  were  used  as  an  argument 
against  the  increase  of  the  standing  army.'  In  the  year  1749  the  words  were 
altered  so  as  to  appear  as  they  have  stood  in  each  of  the  successive  Mutiny 
Acts  or  Articles  of  War  that  were  enacted  or  promulgated  between  that 
date  and  the  date  of  the  permanent  Army  Discipline  Act  of  1870.'  In  the 
re-enactment  of  that  statute  in  1881  the  provision  appears  in  the  following 
form:  "  Every  person  subject  to  military  law  who  strikes  or  uses  or  offers 
any  violence  to  his  superior  officer,  being  in  the  execution  of  his  office,  or 
who  disobeys,  in  such  manner  as  to  show  a  willful  defiance  of  authority,  any 

'  I.  Clode,  Military  Forces  of  the  Crown,  155 ;  3  Geo.  I.,  cb.  2,  sec.  1. 

«  Ibid.,  155. 

2  Ibid.,  156. 

♦  "This  limitation,  which  must  always  have  been  the  implied  intention  of  the  law, 
was  expressed  by  tlie  insertion  of  the  word  '  lawful '  in  the  Mutiny  Act  of  1718,  and  has 
obviated  any  misunderstanding  of  its  true  meaning  in  this  respect.  But  the  wording  of 
the  Mutiny  Act  and  the  corresponding  Article,  as  thus  altered,  'refuse  to  obey  any  law- 
ful command,'  left  room  for  a  question  wliether  they  extended  to  disobedience,  unac- 
companied by  an  express  refusal  ;  and  this  was  again  altered  in  1749  to  the  existing  form, 
'  disobey  the  lawful  command.'  "This  extends  to  every  act  of  direct  disobedience,  whether 
active  or  passive,  but  the  capital  oflense  is  not  complete  by  mere  neglect  or  forgetful ness. 
There  must  he  an  intentional  disobedience  or  defiance  of  authority,  although  not  neces- 
sarily expressed  in  words."     Simmons,  §  178. 


THE  ARTICLES   OF    WAR.  379 

lawful  command  given  personally  by  his  superior  oflicer  in  the  execution  of 
his  office,  whether  the  same  is  given  orally  or  in  writing,  or  by  signal  or 
otherwise,  shall,  on  conviction  by  court-martial,  be  liable  to  sulTer  death,  or 
such  less  punishment  as  is  in  this  Act  mentioned."  ' 

The  provision  a})pears  as  Article  5,  Section  2,  of  the  American  Articles 
of  1776,  being  adopted  without  change  from  the  corresponding  Article  then 
in  force  in  the  British  service.'  It  was  enacted  as  No.  U  of  the  Articles  of 
1800,  and  was  re-enacted  in  the  same  form  in  the  Articles  of  1874. 

Orders;  Nature  and  Character.— Orders  are  authoritative  directions  in 
res])ect  to  the  military  service  issuing  from  a  comi)etent  military  superior, 
which  constitute  obligatory  rules  of  condnct  for  all  military  persons  under 
the  command  of  the  officer  from  whom  they  proceed.' 

Form. If,  as  will  presently  be  shown,  an  order  be  lawful  and  within 

the  authority  and  discretion  of  the  commander  by  whom  it  is  issued,  its  form 
is  a  matter  of  but  minor  importance.  Orders  may  therefore  be  given  or 
communicated  either  orally  or  in  writing;  they  may  take  the  shape  of 
formal  official  utterances,  and  may  be  issued  in  regular  numbered  series;  or 
they  may  appear  in  the  form  of  circulars  or  memoranda,  or  as  letters  of 
instruction  addressed  to  the  person  whose  conduct  is  to  be  affected  by  them. 
General  Orders  are  those  containing  directions  or  information  which  affect 
the  entire  command  of  the  authority  from  which  they  emanate;  *  Special 
Orders  are  such  as  concern  individuals  or  wliich  relate  to  matters  which  need 
not  be  made  known  to  the  entire  command."  Their  binding  effect  is  the 
same  in  either  case. 


'  Mamml  of  Miliiaiv  Law,  334,  335. 

«  Article  5.  Sec.  2.  British  Code  of  1774. 

*  Orders  properly  so  called  are  in  general  addressed  to,  and  are  inteuded  to  regulate 
the  conduct  of,  all  military  persons  under  the  command  or  control  of  the  superior  from 
which  they  emanate,  or  to  affect  a  considerable  number  of  such  persons  ;  instructiorit 
are  directions  of  similar  origin  which  are  intended  to  govern  the  actions  of  the  individ- 
uals to  whom  they  are  addressed.  Landram  vs.  U.  S.,  16  Ct.  Cls.,  74.  Their  obligatory 
character,  however,  is  the  same  in  either  case. 

*  General  orders  announce  the  time  and  place  of  issues  and  payments,  hours  for  roll- 
calls  and  duties,  police  regulations  and  prohibitions,  returns  to  be  made  and  their  forms, 
laws  and  regulations  for  the  Army,  promotions  and  api)ointments,  eulogies  or  censures, 
the  results  of  trial  by  general  courts-marl ial  in  all  cases  of  officers  or  of  enlisted  men 
involving  matters  of  general  interest  and  importance,  and  generally  whatever  it  may  be 
important  to  publish  to  the  whole  command.  Orders  eulogizing  the  conduct  of  living 
oflScers  will  not  be  issued  except  in  cases  of  gallantry  in  action  or  performance  of  spe- 
cially hazardous  service.     Par  771,  Army  Reg.  1895. 

'  Special  orders  are  such  as  concern  individuals  or  relate  to  matters  that  need  not  be 
made  known  to  the  whole  command.     Par.  772,  ibid. 

General  and  special  orders  are  numbered  in  separate  series,  each  beginning  with  the 
calendar  year  or  at  the  time  of  the  establishment  of  the  headquarters.  Orders  issued  by 
commanders  of  battalions,  companies,  or  small  detachments  are  simply  denominated 
"orders,"  and  are  ninnbered  in  a  single  series,  beginning  with  the  year.  Circulars 
issued  from  any  headquarters  are  numbered  in  a  sepamte  series.     Par.  770,  ibid. 

An  order  will  state  at  its  head  the  source  from  which  it  emanates,  its  nuinbei .  date, 
and  place  of  issiie,  and  at  its  foot  the  name  of  the  commander  by  whose  authority  it  is 
issueil.  It  may  be  put  in  the  form  of  a  letter  addressed  to  the  individual  concerned 
throuirh  the  proper  channel.     Par.  774,  ibid. 

Orders  for  any  body  of  troops  will  be  addressed  to  its  commander.     They  will  be 


380  MILITARY  LAW. 

Essential  Elements. — As  disobedience  of  lawful  orders  constitutes  one  of 
the  most  serious  offenses  known  to  military  law,  it  is  important  to  know 
what  constitutes  a  lawful  order  within  the  meaning  of  tlie  Article;  it  is  also 
important  to  know  when  orders,  as  such,  become  operative;  that  is,  when 
they  acquire  such  binding  force  as  to  confer  upon  a  failure  in  respect  to 
obedience  the  character  of  a  military  ott'euse.  When  an  order  is  given  to  an 
otticer  or  soldier  by  a  proper  military  superior,'  the  subordinate  is  not  i)er- 
mitied  to  question  either  its  propriety  or  expediency;  still  less  is  its  legality 
a  matter  which  is  submitted  to  him  for  quasi-judicial  determination."  The 
Articles  of  War,  which  he  has  voluntarily  accepted  as  a  rule  of  official  con- 
duct, require  of  the  inferior  instant  and  exact  obedience  to  the  orders  of  his 
military  superior;    the  presumptions  of   regularity   and  good  faith  which 

executed  by  the  commander  present,  and  will  be  published  and  copies  distributed  by 
him  when  necessary.     Par.  775,  Army  Regulations  1895. 

Orders  and  instructions  will  be  transmitted  through  intermediate  commanders  in 
order  of  rank,  except  when  they  are  of  such  character  that  the  commanders  have  no 
power  to  modify  or  suspend  them.  In  such  cases  the  orders  or  instructions  will  be  sent 
direct  to  the  officer  by  wliom  they  are  to  be  executed,  copies  being  furnished  to  the 
intermediate  commanders.     Par.  777,  ibid. 

Printed  orders  are  generally  distributed  direct  to  posts  by  the  headquarters  from 
whicli  issued.  Files  of  such  orders  will  be  kept  by  each  regiment  and  company  and  at 
each  military  post,  and  will  be  turned  over  by  a  commander  when  relieved  to  his  suc- 
cessor. If  general  orders  in  regular  succession  are  not  received  within  a  reasonable 
time,  commanding  officers  -^vijl  report  missing  numbers  to  the  proper  headquarters. 
Par.  778,  ibid. 

In  camp  or  garrison,  orders  that  affect  a  command  will,  as  a  rule,  be  read  to  the 
troops  at  the  first  regular  parade  after  they  are  received.  In  the  field,  when  orderly- 
hours  cannot  be  observed,  they  will  be  sent  direct  to  the  troops,  or  commanders  of  regi- 
ments or  corps  will  be  informed  when  to  send  to  headquarters  for  them,  or  during  a 
hall  orders  will  be  read  to  troops  without  waiting  for  the  regular  parades.  Par.  779, 
ibid_ 

General  or  special  orders  relating  to  the  Army  Issued  from  the  War  Department  by 
the  Secretary  of  War,  or  by  his  direction,  are  to  be  presumed  to  be  made  by  the  author- 
ity of  tlie  President,  and  to  be  viewed  as  his  orders  equally  as  if  he  had  subscribed  the 
same.     Die.  J.  A.  Gen.,  544,  par.  1. 

■  The  term  officer  ("superior  oflicer  'M  in  this  as  in  other  Articles  of  War  means  com- 
missioned officer.*  So  held  \h\\i  the  disobedience  by  a  cadet  private  of  the  Military 
Academy  of  an  order  of  a  cadet  lieutenant  of  his  company  was  not  chargeable  under 
this  Article,  but  was  an  offense  under  Article  62.     Ibid.,  30,  par.  17. 

The  "superior  officer,"  in  the  .sense  of  this  Article,  need  not  necessarily  have  been 
the  commandifig  officer  of  the  accused  at  the  lime  of  the  offense.  The  Article  is  thus 
broader  than  Art.  20,  which  relates  only  to  an  offense  against  a  "  commanding  officer." 
Ibid..  27,  par.  4. 

Where  an  inferior  officor  was  charged  with  having  disobeyed  an  order  given  him  on 
the  spot  by  a  superior  officer,  held  that  it  should  be  made  to  appear  in  proof  that  the 
latter,  if  not  personally  known  to  the  accused  to  be  his  superior  officer,  was  recognizable 
as  such  by  his  imiform  or  otherwise.     Jhid.,  par.  5. 

'  In  the  Cedarquist  Case  the  Judge  Advocate-General  said  :  "  There  can  be  no  more 
dangerous  principle  in  the  government  of  the  Army  than  that  each  soldier  should  deter- 
mine for  himself  whether  an  order  requirincr  a  military  duty  to  be  performed  is  neces- 
sary or  in  accordance  with  orders,  retrulations,  decision  circulars,  or  custo'in,  and  that 
he  may  disobey  the  order  if,  in  his  judsrment  (fakiiur.  of  course,  all  risks  in  case  his 
judgment  should  be  erroneous),  it  sliould  not  be  necessary  or  shoidd  be  at  variance  with 
orders,  regulations,  decision  circulars,  or  eustom.  It  is  his  duty  to  obey  such  order 
first,  and  if  he  should  be  aggrieved  thereby  he  can  seek  redress  afterwards." 


*  '^ft^  th 
fi-d  that 


rhe  provision   introtlnof.orv  tr,  thf  Arti(>lf>s  of  War  of  Sec.  1343.  Rev.  Sts..  in  which  it  is  speci- 
'■  the  word  o^icer  as  used  therein  shall  be  under.stood  to  designate  commissioned  oflacers.  ' 


THE  ARTICLES  OF  WAR.  3»1 

attend  public  officers  in  the  perforniunce  of  their  duties  apply  to  the  orders 
of  a  superior  witii  precisely  the  same  force  as  to  his  other  official  acts.  A 
lawful  order  may  tlierefor?  be  deliued  as  a  command  issued  by  a  military 
su})eri()r  to  a  person  under  his  command,  requiring  an  act  to  be  done  which 
is  permitted,  sanctioned,  or  justilled  by  the  law  of  the  land.  All  directions 
or  instructions  in  respect  to  the  military  service  which  are  issued  in  pursu- 
ance of  statutes,  regulations,  or  the  command  of  superior  authority,  or  which 
are  in  execution  or  furtherance  of  the  same,  are  lawful  orders,  and  as  such 
are  entitled  to  prompt  obedience.  If  a  question  arises  in  respect  to  their 
legality,  and  the  order  is  not  on  its  face  clearly  and  obviously  in, contraven- 
tion of  law,  it  is  the  duty  of  the  inferior  to  resolve  such  doubt  in  favor  of 
obedience,  relying  for  justification  upon  the  forms  of  the  order  so  received 
and  obeyed.'  Except  in  the  solitary  instance  where  the  illegality  of  an 
order  is  glaringly  apparent  on  the  face  of  it,  a  military,  subordinate  is  com- 
pelled to  a  complete  and  undeviating  obedience  to  the  very  letter  of  the 
command  received.'     No  other  obligation  must  be  put  in  competition  with 

'  Under  a  charge  of  disobedionce  of  the  order  of  a  superior  ofRcer  iu  violation  of  this 
Article,  it  should  be  alleged,  aud  should  appear  from  the  evidence  introduced,  that  tlie 
order  or  "  command  "  was  "  lawful."  Au  officer  or  soldier  is  not  punishable  under  this 
Article  for  disobeying  an  unlawful  order.  But  the  order  of  a  proper  superior  is  to  l,e 
presumed  to  be  lawful,  and  should  be  obe3ed  where  it  is  not  clearly  aud  oiiviously  iu 
contravention  of  law. 

To  justify,  from  a  military  puint  of  view,  a  military  inferior  in  disobeying  the  order 
of  a  superior,  the  order  must  be  one  requiring  something  to  be  done  which  is  jmlpably  a 
breach  of  law  and  a  crime  or  au  injury  to  a  thiid  person,  or  son.ething  of  a  serious  char- 
acter (not  involviuii-  iiiiport.mt  consequences  only)  which,  if  done,  would  not  be  sus- 
ceptible of  being  riC^hteii.  An  order  recpiiring  the  performance  of  a  military  duty  cannot 
be  disobeyed  whh  impunity  unless  it  has  one  of  these  characters.  ' 

Unless  the  illegality  is  unquestionable  he  should  obey  tirst  and  seek  redress,  if  entitled 
to  any,  afterwards.  A  military  inferior  in  refusing  or  failing  to  comply  with  the  order 
of  a  s'u'perior  on  the  ground  that  the  same  is,  iu  his  opinion,  unlawful,  does  so  of  course 
on  his  own  personal  responsibility  and  at  his  own  risk.     Dig.  J.  A.  Gen.,  27,  par.  7. 

Where  an  officer  respectfully  declined  to  comply  with  the  direction  of  his  superior  to 
sii.ni  the  certificate  to  a  report  of  target-tiring  on  the  ground  that  the  facts  set  forth  in 
siTch  certificate  were  not  withiu  his  knowledge,  he  having  been  stationed  at  the  butt, 
wiiere  he  was  not  in  a  position  to  be  informed  as  to  such  facts,  ^ield  that  he  was  not 
amenable  to  a  charge  of  disobedience  of  orders  under  this  Article.  Ibid.,  30,  par.  16. 
See,  also.  ibid..  29,  pars.  12.  14.  and  15. 

Held  that  a  member  of  a  jiost  band  who  refused  (respectfully)  to  obey  an  order  of 
the  post  Commander  directing  the  band  to  i^lay  in  a  town  in  the  neighboriiood  of  tlie  post 
for  the  pleasure  of  the  inhabitants  was  not  chargeable  with  a  military  offense,  such  an 
order  not  being  a  "  lawful  command  "  in  the  sense  of  this  Article.  tSo  field  that  a  sol- 
dier  was  not  cliargeable  with  "  disobedience  of  orders  "  in  not  complying  witli  an  order 
forbidding  him  to  contract  marri;ige;  and  similarly  /teld  of  a  refusal  by  a  soldier  to  com- 
ply with  :in  order  (iu  violation  of  Sec.  12o2,  lit  v.  Stat.)  to  act  as  an  otBcer's  servant.  So 
wiiere  a  soldier  was  convicted  of  a  disobedience  of  orders  in  refusing  to  assist  in  buihi- 
in"-  a  private  stable  for  an  otlicer,  the  tindini:  was  disapproved  on  the  LMound  that  such 
an  order  was  not  a  lawful  one.  G.  C  M.  O.  130,  Dept.  of  Dakota,  1879.  Ibid.,  28, 
par.  8. 

'Samuel,  287.  The  most  important  consequences  may  often  rest  on  the  precise, 
meciianical  e.xecution  of  an  order  which  in  appearance  to  the  military  inferior  may 
have  a  substantive  and  a  sole  object  in  view,  while  in  the  design  of  the  commander  it 
may  be  combined  with  a  vast  and  various  machinery,  and  .a  deviation  from  it,  even  with 
th'^  best  intentions  and  the  best  success,  separately  considered,  might  defeat  the  grand 
end  of  the  meditated  enterprise.     Hence  it  is  scarcely  impossible  to  imagine  a  case  when 


382  MILITARY  LAW. 

this;  neither  parental  authority/  nor  religions  scruples,'  nor  personal 
safety,'  nor  pecuniary  advantages  from  other  service.  All  the  duties  of  his 
life  are,  according  to  the  theory  of  military  obedience,  absorbed  in  that  one 
dutv  of  obeying  the  command  of  the  otticers  set  over  him.' 

When  Operative. — It  is  a  well-known  principle  that  all  persons  are  pre- 
sumed to  know  the  law  of  the  State  within  which  they  live  or  in  which  they 
are  temporarily  domiciled ;  a  similar  rule  prevails  as  to  knowledge  of  the 
orders  of  a  military  commander  which  have  been  duly  promulgated  to  his 
command.  It  may  therefore  be  said  that  an  order  affecting  a  military  person 
becomes  operative  as  to  such  person  when  he  has  received  military  notice  of 
its  existence  and  contents;  that  is,  if  the  order  be  general  in  character,  it 
becomes  operative  when  it  has  been  formally  promulgated  to  the  command 
to  which  it  pertains;  if  it  be  special  or  individual  in  its  operation,  it 
becomes  effective  when  it  has  been  served  upon,  or  received,  by  such  person 
through  the  usual  military  channels.^ 

The  notice  of  the  order,  to  affect  the  officer,  should  thus  be  a  personal 
notice,  actual  or  constructive,  and  it  should  be  an  official  notice.  Personal 
information  of  the  same  given  to  him  by  another  officer  or  person  not 
specifically  authorized  or  required  by  his  duty  to  communicate  it  will  not  in 
general  be  legally  sufficient;  nor,  on  the  other  hand,  will  the  mere  official 
publication  of  the  same  at  the  headquarters  of  the  Army  or  of  a  depart- 
ment, without  his  being  himself  personally  advised  of  the  same,  be  sufficient 
to  ffive  effect  to  the  order.' 

Disobedience  of  Orders. — The  offense  of  disobedience  of  orders  contem- 
plated by  this  Article  consists  in  a  refusal  or  neglect  to  comply  with  a 

a  subordinate  officer  would  be  at  liberty  to  depart  from  the  positive  command  of  Lis 
£Ui)eii()r.     Samuel,  287. 

'  Rex  vs.  Rotherfield,  1  Bar.  &  Ores.,  350. 

« Captain  Atchison's  Case.  88  H.  D.  (  ).  319;  24  ibid.  (2).  299;  and  25  ibid.,  351,  421. 

» Sutton  vs.  Johnstone,  1  Terra  Rep.,  548.  See,  also,  In  re  Grimley,  137  U.  S.,  153; 
U.  S.  T8.  Clarke.  3  Fed.  Rep.,  713. 

MI.  Clode,  Mil.  Forces,  etc.,  37. 

'No  precise  rule  can  be  laid  down  as  to  when  a  military  order  affecting  11, e  status, 
pay,  rights,  or  duties  of  an  officer  can  be  said  to  become  operative  as  regards  himself. 
A  general  principle,  analogous  to  that  of  the  law  of  notice,  should  ordinarily  be  applied 
to  the  cases,  and  the  order  be  treated  as  not  legally  taking  effect  until  the  officer  is  per- 
sonally officially  notified  of  the  same.  In  the  absence  of  an  actual  personal  delivery  to 
or  receipt  by  him  of  the  order  or  an  official  copy,  the  fact  of  the  promulgation  or  receipt 
of  the  same  at  his  proper  military  station  will  in  general  be  presumed  to  have  given 
him  official  notice  of  its  contents— a  presumption,  however,  liable  to  be  rebutted  by 
proof  that,  without  any  fault  or  negligence  of  his  own,  knowledge  of  the  same  was 
never  actually  brought  home  to  him, — as  where,  for  exami)le,  he  was  at  the  time  absent 
on  leave,  or  ill  at  a  distant  hospital,  or  a  prisoner  in  the  hands  of  the  enemy,  and  there- 
fore was  not  uotkied  in  fact.     Dig.  J.  A.  Gen.,  545,  par.  2. 

'  Where  indeed  the  officer  fails  to  receive  personal  official  notice  by  reason  of  some 
fault  or  neglect  of  his  own,  as  because  of  his  having  absented  himself  without  authority 
from  his  station  when  the  order  arrived,  or  becau.se,  being  on  detached  service,  he  has 
not  duly  advised  the  Adjutant-General  of  his  address  as  required  by  par.  805,  Army 
Regulations,  he  will  not  be  permitted  to  take  advantage  of  his  own  wrong,  and  the 
receipt  of  the  order,  at  his  proper  station,  or  last  reported  station,  will  be  held  to  operate 
as  due  and  effectual,  or  constructive,  notice.     Ibid. 


THE  ARTICLES  OF   WAR.  383 

specific  order  to  do  or  not  to  do  a  particular  thing.  A  mere  failure  to  per- 
form a  routine  duty  is  properly  charged  under  Article  <;•■>.'  Where  an 
officer  neglected  fully  to  i)erform  his  duty  under  general  instructions  o-iven 
him  in  regard  to  the  conduct  of  an  expedition  against  Indians,  held  that  his 
offense  was  properly  chargeable  not  under  the  21st  but  under  the  62d 
Article.'  A  breach  of  an  army  regulation  imposing  a  duty  upon  an  officer 
or  soldier  is  in  general  cliargeable  as  "  conduct  to  the  prejudice  of  good 
order  and  military  discipline,"  and  punishable  under  Article  G^.* 

A  non-compliance  by  a  soldier  with  an  order  emanating  from  a  non- 
commissioned otlicer  is  not  an  offense  under  this  Article,  but  one  to  be 
char'^ed  in  general  under  the  6:id.^ 

An  officer  or  soldier  on  leave  of  absence  cannot  in  general  be  made  liable 
to  a  charge  of  disobedience  of  orders,  except,  indeed,  where  required  by  a 
positive  order,  issued  on  account  of  a  public  emergency,  to  return  before  his 
leave  has  expired,  and  he  has  failed  to  comply  with  such  requirement.^ 

Character  of  the  Disobedience. — Disobedience  may  be  either  negative  or 
positive.  It  may  consist  in  tiie  non-observance  or  neglect  of  what  is  enjoined 
in  the  orders  of  a  superior  issued  or  published  long  anteriorly  to  the  com- 
mission of  the  act  of  disobedience,  such  as  general  regulations  laid  down  bv 
proper  authority  for  the  conduct  of  officers  or  soldiers  in  a  particular  reo-i- 
ment,  or  standing  orders  to  be  observed  throughout  the  army;  or  it  mav 
consist  in  the  refusal  or  resistance  of  commands  instantly  and  presentlv 
given,  and  directed  to  be  obeyed  with  promptitude.  In  i\\Q  first,  the  orders 
might  be  of  no  immediate  urgency  or  of  no  great  importance,  and  the  dis- 
obedience to  them  might  arise  out  of  simple  negligence  or,  possibly,  a 
momentary  forgetfulness  of  the  existence  of  the  particular  orders,  or  out  of 
a  sudden,  unguarded,  or  nnpcTceived  lapse  into  crime;  in  none  of  these 
cases  is  there  implied  any  bold  or  wanton  defiance  of  authority,  or  any  more 
serious  offense  than  is  provided  against  in  the  G2d  Article,  and  which  is 
regarded  as  a  military  misdemeanor  only,  under  the  description  of  a 
neglect  "to  the  prejudice  of  good  order  and  military  discipline"  to  be 
punished  at  the  discretion  of  a  court-martial.  ' 

In  the  second,  the  absolute  resistance  of  or  refusal  of  obedience  to  a 
present  and  urgent  command,  conveyed  either  orally  or  in  writing,  by  the 
non-compliance  with  which  some  immediate  act,  necessary  to  be  done,  might 
be  impeded  or  defeated,  as  high  an  offense  is  discoverable  as  can  well  be 
contemplated  by  the  military  mind;  inasmuch  as  the  principle  which  it 


'  See  G.  C.  M  O.  26,  A.  G.  O.,  1873 ;  do.  7,  Department  of  Texas.  1874 :   ibid.,  34 
Fifth  Mil.  Dist.,  1868. 

'  Dig.  J.  A.  Gen..  28,  par.  9. 

*  Ibid.,  168,  par.  5. 

*  Ibid..  27,  pur.  6. 
»  Ibid.,  29.  par.  10. 
«  Samuel,  385. 


384  MI  LIT  ART  LAW. 

holds  out,  if  enconrageci  or  not  suppressed  by  some  heavj-  penalty,  would 
forbid  or  preclude  a  reliance  on  the  execution  of  any  military  measure. 
I'rompt,  ready,  unhesitating  obedience,  in  soldiers,  to  those  who  are  set  over 
them  is  so  necessary  to  tlie  safety  of  the  military  state,  and  to  the  success 
of  every  military  achievement,  that  it  would  be  pernicious  to  have  it  under- 
stood that  military  disobedience  in  any  instance  may  go  unquestioned.' 

It  is  i\\\s  jjositive  disobedience,  therefore,  evincing  a  refractory  spirit  in 
the  inferior,  an  active  opposition  to  the  commands  of  a  superior,  against 
which  it  must  be  supposed  that  the  severe  penalty  of  the  Article  is  princi- 
pally directed.  This  highly  criminal  disobedience  may  arise  either  out  of 
the  refusal  of  the  officer  or  soldier  to  act  as  he  is  ordered;  to  march,  for 
instance,  whither  he  is  bidden,  or  to  desist  from  any  act  or  purpose  which 
he  is  prohibited  by  a  direct  command  from  pursuing;  for  it  would,  in  many 
circumstances  which  may  be  easily  imagined,  be  as  dangerous  to  persist  in 
a  forbidden  course  as  to  decline  or  recede  from  one  that  is  commanded. 
Whether  the  orders  of  the  superior  enjoin  an  active  or  passive  conduct,  the 
officer  or  soldier  subject  to  them  is  equally  obliged  to  obey.  Otherwise  every 
military  operation  or  enterprise  would  be  made  to  depend,  not  on  the 
prudence  or  counsel  of  the  commander,  but  the  will  or  caprice  of  the  sol- 
dierv,  either  for  the  furtherance  or  obstruction  of  its  object.* 

It  is  not  to  be  understood  that  the  construction  placed  upon  negative 
disobedience  bv  courts-martial  is  such  as  to  make  such  an  offense  one  of 
minor  consequence.  It  will  be  observed  that  the  Article  itself  makes  no  dis- 
tinction between  one  act  of  disobedience  and  another; — whether  any  is  to  be 
made,  indeed,  will  depend  upon  the  view  which  a  court-martial  may  take  of 
the  circumstances  submitted  to  it ;— "  wherever  it  is  made,  it  will  be,  not 
in  relaxation  of  the  principle  of  military  obedience  inculcated  by  the  Article, 
but  in  the  exercise  of  a  discretion  lawfully  resident  in  the  court  to  miti- 
gate, according  to  oircnni>:tances,  the  rigor  and  severity  of  the  law."  ' 

Specific  Character  of  the  Mandate. — "  It  must  be  presumed  that  the  dis- 
bedience  of  orders  contemplated  by  the  Article  is  a  positive  and  willful 
&..5obedience  of  an  order  specially  or  directly  given  to  the  accused,  and  not 
a  jnere  neglect  or  omission  of  general  duty  "  required  by  regulations  or 
general  orders  (which,  as  will  presently  be  seen,  is  an  offense  chargeable  under 
the  62d  Article),  "  unless  he  be  specially  directed  to  perform  such  duty  in 
the  instance  alleged";'  in  which  case  such  special  direction,  given  by  a  com- 
petent superior,  operates  to  convert  the  requirement  of  regulations  or  orders 


Samuel,  285*  «  Ibid.,  286.  »  Ihid.  "  O'Brien,  84. 


*  On  January  20.  1798,  Thomas.  I>ord  Camelfoni.  shot  down  Lieut.  Peterson  of  the  ship  Peidrix 
••  for  very  extraordinary  and  manifest  disobedience  to  his  lawful  orders,  and  for  arming  the  ship's 
company  to  resist  the  same.'"  For  this  he  was  honorably  acquitted  by  a  naval  court-martial  on  the 
20th  of  January  following.  A  naval  court-martiiil  gave  u  similar  acquittal,  on  September  27,  1775,  to 
arj  officer  charged  with  shooting  down  one  of  four  sailors  leaving  tlie  ship  as  deserters.  Olode,  Mil. 
Law,  180,  not«. 


THE  ARTICLES  OF  MAR.  385 

into  a  specific  order  to  the  accused,  and  to  give  to  his  failure  to  ohev  sucli 
direction  the  character  of  disoljedience  of  a  jjoditive  order. 

Channels  of  Communication. — "  In  a  charge  of  disobedience  of  orders  it 
is  requisite  to  show  tliat  the  communication,   verljal  or  written,  from  tlie 
superior  to  the  inferior  was  actually  and  truly  an  order.     Ati  order  is  a  iiosi- 
tive  direction  to  do  or  not  to  do  some  act.     It  may  be  conditional,  that  is,  it 
may  be  a  positive  direction  to  do  or  refrain  from  doing  some  act  under 
certain  circumstances  or  if  certain  things  should  occur.     The  form  in  which 
this  order  is  given  by  the  suj)erior  is  immaterial,  ])rovided  it  does  convev  to 
the  accused  a  positive  direction.      It  has  been  decided,  in  the  case  of  orders 
tliat  an  oflicial  communication  made  to  the  accused  by  any  commissioned 
officer  stating  that  the  superior  directs  him  to  do  so  and  so  is  an  order* 
the  accused  being  bound  to  presume  that  the  commissioned  orticer  speaks 
truly.     All  that  is  required  is  that  the  agent  communicating  the  orders  .should 
state  that  he  does  so  by  the  order,  or  Ijy  the  direction  or  request,  of  the 
superior;  or  that  he  should  make  known  to  the  accused  that,  in  the  case  in 
(piestion,  he  is  acting  not  in  his  own  name  but  in  the  name  of  the  superior."  ' 
Presumption    of   Knowledge. — An    order   will    always  be   presumed   to 
liave  been  "  made  known  to  the  accused  if  it  has  been  published   in  the 
usual  manner,  as  on  parade,  etc.     In  such  ca.ses  it  would  be  difficult  for  the 
accused   to  rebut   this   presumption,  as  it  is   the  duty  of  every  officer  to 
acquaint  himself  with  ouch  orders.     If  the   order  has  not  been  published 
in  the  customary  manner,   it   is  requisite  to  show  in  some  other  manner 
that  the  order  was   really  made  known  to  the  accused,  or  at  least  to  raise 
such  a  presumption  of  this  fact  as  to  throw  the  burden  of  disproof  on  the 
prisoner.  •  The  presumption  generally  being  that  orders  were  communicated, 
and  that  a  superior  on  duty  was  known  to  be  so,  it  requires  no  great  amount 
of  evidence  to  throw  the  burden  of  disproof  on  the  accused  in  such  instances. 
As  a  general  rule,  an  order  will  also  be  presumed  to  be  legal,  and  proof  on 
this  point  is  seldom  required,   though  of  course  the  court  in  making  its 
lindiiig  is  absolutely  bound  to  consider  this  question,   whether    raised  or 
waived  in  the  course  of  the  trial."  ^ 

Obedience  to  Orders  as  a  Defense. — To  determine  how  far  obedience  to 
orders  may  be  pleaded  in  defense,  it  is  necessary  first  to  understand  the 
military  duty  of  obedience.  "The  Article  enjoins  obedience  to  the  '  law- 
ful '  order  of  a  superior.  The  order  of  a  proper  su})erior  is  prc-noned  to  be 
lawful,  and  should  be  obeyed  where  it  is  not  clearly  and  obviously  in  con- 
travention of  law,"  for,  as  will  presently  be  seen,  an  inferior  will  not  in 


'  O'Brien,  84.  8").      "A  staff  officer  hns.  except    l>y  JissignnuMit,  no   riqlit  to  give  a 
military  order  to  an  otHcer  of  tlie  line  :  if  lie  should  do  so  without  statincr  that  he  did  so 
in  the  name  of  a  superior  to  the  line  officer,  such  order  would  be  invalid."     O'Brien   85 
See   also.  Winthrip,  Mil    Law.  814-8-20. 

«  O'Brien,  83,  85  ;  NVinthrop,  814-820. 


386  MILITARY  LAW. 

general  be  held  liable  by  a  court-martial  for  an  injurious  consequence  of  his 
execution  of  the  order  of  a  superior,'  unless  the  same  was  palpably  illegal  on 
its  face.  Unless,  therefore,  the  illegality  of  the  order  is  unquestionable, 
the  subordinate  should  obey  first  and  seek  redress,  if  entitled  to  any,  after- 
wards.' 

"To  justify,  from  a  military  point  of  view,  a  military  inferior  in  disobey- 
ing the  order  of  a  superior,  the  order  must  be  one  requiring  something  to  be 
done  which  is  palpably  a  breach  of  law  and  a  crime  or  an  injury  to  a  third 
person,  or  is  of  a  serious  character  (not  involving  unimportant  consequences 
only)  and  if  done  would  not  be  susceptible  of  being  righted.  An  order 
requiring  the  performance  of  a  military  duty  or  act  cannot  be  disobeyed 
with  impunity  unless  it  has  one  of  these  characters.  And  a  military  inferior 
in  refusing  or  failing  to  comply  with  the  order  of  a  superior  on  the  ground 
that  the  same  is,  in  his  opinion,  unlawful,  does  so,  of  course,  on  his  own 
personal  responsibility  and  at  his  own  risk.'" 

An  act  done  in  the  execution  of  a  military  order  may  give  rise  to  a  ques- 
tion of  military  resjionsibility,  which   will  properly  be  determined  by  a 


'  See  the  provision  introductory  to  the  Articles  of  War  of  Sec.  1342,  Rev.  Sts.,  in 
which  it  is  specified  that  "the  word  officer,  as  used  therein,  sliall  be  understood  to  desig- 
nate commissioned  officers."  A  non-compliance  by  a  soldier  with  an  order  emanating 
from  a  nou-commissioued  officer  is  not  an  offense  under  this  Article,  but  one  to  be 
charged  iu  general  under  the  62d.  Article.     Dig.  J.  A.  Gen.,  27,  par.  6. 

Tlie  "superior  officer  "in  the  sense  of  this  Article  need  not  necessarily  have  been 
the  commanding  officer  of  the  accused  at  the  time  of  the  offense.  The  Article  is  thus 
broader  than  Article  20,  which  relates  only  to  an  offense  against  a  "commanding 
officer."    Ibid.,  par.  4. 

Where  an  inferior  officer  was  charged  with  having  disobeyed  an  order  given  him  on 
the  spot  by  a  superior  "officer,  ^eW  that  it  should  be  made  to  appear  in  proof  that  the 
latter,  if  not  personally  known  to  the  accused  to  be  his  superior  officer,  was  recognizable 
as  such  by  his  uniform  or  otherwise.     Ibid.,  par.  5. 

'  Ibid.,  par.  7.  "  The  tirst  duty  of  a  soldier  is  obedience,  and  without  this  there  can 
be  neither  discipline  nor  efficiency  in  an  army."    McCall  vs.  McDowell,  15  Fed.  Cas.,  1235. 

"  To  insure  efficiency  an  army  must  be  to  a  certain  e.vtent  a  despotism.  Each  officer 
*  *  *  is  invested  with  an  arl)itrary  power  over  those  beneath  lam,  and  the  soldier 
who  enlists  in  the  army  waives  in  some  particulars  his  rights  as  a  civilian,  surrenders 
his  personal  liberty  during  the  term  of  his  enlistment,  and  consents  to  come  and  go  at 
the  will  of  his  superior  officers.  He  agrees  to  become  amenable  to  the  military  courts, 
to  be  disciplined  for  offenses  imknown  to  the  civil  law,  to  relinquish  his  right  of  trial 
by  jury,  and  to  receive  punishments  which  to  tlie  civilian  seem  out  of  all  proportion  to 
the  magnitude  of  the  offense."     U.  S.  vs.  Clarke,  3  Fed.  Rep.,  713— Brown,  .J. 

"An  army  is  not  a  deliberative  body;  it  is  the  executive  arm.  Its  law  is  that  of 
obedience.  No  question  can  be  left  open  as  to  the  right  to  command  in  the  officer,  or 
the  duty  of  obedience  in  the  soldier.  Vigor  and  efficiency  on  the  part  of  the  officer  and 
confidence  among  the  soldiers  in  one  another  sire  impaired  if  any  (juestion  be  left  open 
as  to  their  attitude  to  each  other."     In  re  Grimley.  137  U.  S. ,  153. 

^  .T.  A.  General.  In  the  Uedarquist  Case  it  was  held  by  the  Judge-Advocate  General 
that  "there  could  be  no  more  dangerous  principle  in  the  government  of  the  Army  than 
that  each  soldier  should  determine  for  iiimself  whether  an  order  requiring  a  military 
duty  to  be  performed  is  necessary  or  in  accordance  with  orders,  regulations,  decision 
circulars,  or  custom,  and  may  (ii.sobey  the  order  if,  in  his  judgment  (taking,  of  course, 
all  risks  in  case  his  judgment  should  be  erroneous),  it  should  not  be  necessary  or  should 
be  at  variance  with  orders,  regulations,  decision  circulars,  or  custnm.  It  is  Ins  duty  to 
obey  such  order  tirst,  and  if  he  should  be  aggrieved  thereby  he  can  seek  redress  after- 
wards."    Ibid. 


THE  ARTICLES  OF  WAR.  3S7 

court-martial ;  or  to  a  question  of  civil  responsibility,  whicli  will  be  deter- 
mined by  an  appropriate  civil  tribunal.  In  the  former  case  "  the  order  of 
a  commanding  officer  will  in  general  constitute  a  sufficient  authority  for 
acts  regularly  done  by  an  inferior  in  compliance  with  the  same,"  '  and  such 
an  order  niiuy  properly  be  pleaded  in  the  trial,  by  court-martial,  of  an  offense 
growing  out  of  such  obedience  to  the  lawful  order  of  a  proper  militarv 
sni)erior.  And  when  so  i)le!ided  before  such  a  tribunal  it  will  constitute 
a  conij)lete  defense. 

AVhere,  however,  the  order  of  the  superior  is  a  palpably  illegal  order,  the 
inferior  cannot  justify  under  it;'  and  if  brought  to  trial  by  court-martial  or 
sued  in  damages  for  an  act  done  by  him  in  obedience  thereto,  the  order  will 
be  admissible  only  in  extenuation  of  the  offense.' 

Obedience  to  Military  Orders  as  a  Defense  in  a  Civil  Trial. As  to  the 

extent  to  which  obedience  to  orders  may  be  pleaded  in  defense  to  a  civil 
action,  or  in  a  criminal  trial  before  a  civil  court,  the  authorities  are  less 
clear.  If  the  law  vests  certain  statutory  powers  in  a  military  superior,  and 
requires  such  orders  to  be  obeyed  by  the  infliction  of  a  heavy  penalty  in  the 
event  of  their  disobedience,  it  would  seem  that  the  obedience  so  required  by 
law  should  constitute  a  sufficient  defense  in  a  trial,  civil  or  criminal,  grow- 
ing out  of  an  act  connected  with  such  obedience.  Such,  however,  is  not 
generally  or  even  frequently  the  case.* 

Striking  Superior  Officer,  etc. — The  offense  contemplated  in  the  Article 
consists  in  the  infliction  of  any  bodily  injury,  however  slight,  upon  the  person 
of  a  military  superior,  such  superior  being  a  commissioned  officer;  or  in  an 
attempt  to  inflict  sucli  injury,  as  evidenced  by  the  drawing  or  lifting  up  any 
weapon,   or  by  any  offer  of  violence,    whatever   its  nature    or  character, 


'  Di?.  J.  A.  Gen.,  547,  par.  6. 

'  Ibil.  See,  on  tliis  subject.  Harmony  m.  Mitchell,  1  Blatcli.,  549.  and  13 
Howard.  4'31  ;  Diuand  ;\s>.  llo'llins,  4  Blatch.,  401;  Holmes  vs.  Siieridan,  1  Dillon 
357:  McCall  rs.  McD  )well,  Dendy.  2^:!,  and  1  Ab.  U.  S.  K..  212;  Clay 
xs.  United  States.  Devereux,  25  ;  United  States  vft.  Carr,  1  Woods,  480  ;  Bates  ts. 
Clark,  5  Otto.  204  ;  Ford  v».  Snrget.  7  Otto,  594  ;  Skeen  ts.  :Monklieimer,  21  Ind.,  1  ; 
Griffin  vs.  Wilcox,  id.,  391  ;  Risrsrs  rs.  State,  3  Cold.,  851  :  State  i-s.  Sparks,  27  Texas, 
|i32  ;  Keighly  w.  Bell.  4  Fost.  it  Fin  ,  805  ;  Dawkins  rs.  Rokeby.  HI.  831.  The  law 
is  the  same  altliontrh  the  order  to  the  inferior  may  emanate  directly  from  the  President. 
See  Eifort  vs.  Bevins,  1  Bush,  460. 

^  Ibid.  See,  also.  State  ?.■(.  Sparks,  ante;  McCall  vs.  McDowell,  aiiie  :  Milligan  rs. 
Hovey,  3  Bissell,  13;  Beckwith  vs.  Bean,  8  Otto,  266.  "How  far  the  orders  of  a 
superior  officer  are  a  Justilicaiion  to  his  inferior  who  acts  on  them  I  do  not  undertake  to 
decide.  With  resanl  to  Kmrlishmen  in  England  questions  have  been  raised.  I  believe 
the  belter  ojiinion  to  be  that  an  officer  or  soldier  actinir  upon  tlie  orders  of  his  superioi', 
not  bciiijr  plainly  illciiMl.  is  jusiiticd  ;  but  if  thev  be  plainly  illegal,  he  is  doI  juslitied." 
Mr.  Justice  Willes,  iti  Keigh'tley  r.v.  Bell.  4  Fost."&  Fin.,  763. 

••  n.  Winthrop,  135.  The  civil  responsibility  is  another  matter.  Civil  courts  have 
sometimes  made  allowance  for  the  re(|uirements  of  milit.ary  discipline  :  but  if  they 
should  not,  the  military  obligation  would  remain  luiimpaired.  The  soldier,  in  entering 
the  service,  has  voluntarily  submitted  himself  to  this  double  and  possibly  conflicting 
liability.  The  evil  of  an  undisciplined  soldier}'  would  be  far  crreater  than  the  injustice 
(apparent  rather  than  actual)  of  this  principle.     Opin.  J.  A.  Gen. 


S8S  MILITARY  LAW. 

attended  by  such  circumstances  as  denote  at  the  time  an  intention  to  inflict 
injury,  coupled  with  a  present  ability  to  carry  the  intention  into  effect.' 
Threats  operate  to  aggravate  an  offense  of  assault  with  which  they  are  asso- 
ciated or  of  which  they  form  an  essential  part.'  Mere  abusive  words, 
however,  not  accompanied  by  such  acts,  do  not  constitute  an  offense  within 
the  meaning  of  the  Article;  nor  can  an  act  in  defense  of  one's  self,  wife, 
child,  servant,  or  property,  nor  an  act  of  obedience  to  legal  process  or  mili- 
tary order.' 

To  justify  a  conviction  of  the  capital  offense  of  offering  violence  against 
a  superior  officer,  it  should  be  made  to  appear  in  evidence  that  the  accused 
knew  or  believed  that  the  person  assaulted  was  in  fact  an  officer  in  the  Army 
and  was  his  "  superior  "  in  rank." 

Being  in  the  Execution  of  His  Office. — It  is  an  essential  element  of  this 
offense  that  the  officer  against  whom  the  violence  is  directed  should  not  only 
be  superior  in  rank  to  the  accused,  but  that  he  should  be  in  the  execution 
of  his  office.  Under  a  cliarge,  therefore,  of  offering  violence  to  a  superior 
officer,  in  violence  of  this  Article,  it  should  be  alleged  and  proved  that  the 
officer  assaulted  was,  at  the  time,  "  in  the  execution  of  his  office."  '  The 
phrase  "being  in  the  execution  of  his  office"  is  in  general  synonymous 
with  "  being  in  the  performance  of  military  duty,"  and  describes  the  status 
of  a  superior  officer  who  is  engaged  in  the  execution  of  the  duties  pertaining 
to  his  station  or  office  in  the  military  establishment.  While  such  officer  is, 
in  a  majority  of  cases,  placed  upon  duty,  or  engages  in  its  performance,  in 
pursuance  of  orders  from  superior  authority,  or  by  the  operation  of  regula- 
tions or  existing  orders,  he  may  place  himself  upon  duty,  and  so  fulfill  the 
condition  of  "  being  in  the  execution  of  his  office";  as  where  he  orders 
an  enlisted  man  absent  without  authority  to  return  to  his  station,  or  directs 
a  soldier  under  the  influence  of  liquor  to  repair  to  his  quarters,  or  attempts 
to  arrest  an  inferior  who  is  engaged  in  the  commission  of  a  crime.  If 
the  offense  be  in  the  nature  of  a  mutiny  or  sedition,  or  a  fray  or  disorder 
merely,  the  law  places  the  superior  on  duty  and  at  the  same  time  prescribes 

>  Tiavers  vs.  State,  43  Ala.,  536;  Havs  vs.  People,  1  Hill  (N.  Y.),  352.  353  ;  Smith 
vs.  State.  32  Tex.,  593  ;  Smith  vs.  State,  39  Miss.,  531  ;  State  vs.  Benedict,  11  Vt.,  236  ; 
State  rs.  Mjers,  19  Iowa,  517.  To  constitute  an  oflfense  under  the  clause  relatinir  to  vio- 
lence, it  is  not  necessary  that  there  be  an  actual  battery  or  striking  ;  the  drawing  or 
lifting  of  the  hand,  or  any  weapon  or  instrument  with  which  violence  may  be  inflicted, 
and  any  assault  or  mere  offer  of  physical  violence,  are  equally  prohibited,  being  as 
injtuious  to  discipline  as  if  there  had  been  a  use  of  force  resulting  in  serious  bodily 
harm. 

•  Crow  vs.  State,  41  Tex.,  468  ;  Keefe  vs.  State,  19  Ark.,  190  ;  State  vs.  Hampton,  63 
N.  C,  13  ;  People  rs    Yslas.  27  Cal.,  630. 

^  Anderson  Law  Diet. 

*  Dig.  ,J.  A.  Gen.,  27,  par.  1.  See,  also,  General  Orders,  No.  34,  Dept.  of  Virginia, 
1863. 

^  Ibid.,  par.  2.  Held  that  in  charging  a  striking  or  doing  of  violence  to  a  superior 
officer  under  this  Article,  in  a  ca.se  where  the  assault  wns  fatal,  it  was  allowable  to  add 
in  the  specitication  "  thereby  causing  his  death,"  as  indicating  the  measure  of  violence 
employed.     Ibid.,  par.  3. 


THE  ARTICLES  OF   WAR.  389 

a  rule  for  his  guidance  in  the  suppression  of  the  mutiny  or  the  restoration 
of  order. 

Drawing  and  Lifting  up  any  Weapon ;  Offering  Violence. — The  words 
used  to  descril^e  the  offense  set  forth  in  the  second  clause  of  the  Article, 
"  draws  or  lifts  up  any  weapon,  or  offers  any  violence  against  liirn,"  import 
what  is  known  as  an  "  assault"  at  common  law,  which  may  be  defined  as 
an  unlawful  attempt  to  do  injury  to  the  i)erson  of  anotiier,  coupled  with  the 
capacity  or  ability  to  iullict  the  injury  at  the  instant  wlien  the  violence  is 
offered.  The  clause  relating  to  the  drawing  or  lifting  up  of  a  weapon,  while 
evidently  referring  to  an  attempt  to  do  violence  with  the  weapons  ordinarily 
used  in  the  military  service,  is  sufliciently  comprehensive  to  include  any 
weapon  whatever  with  wliich  physical  injury  can  be  inllicted.  Tlie  clause 
respecting  offers  of  violence  is  still  more  comprehensive  and  includes  not  only 
any  attempt  to  inffict  bodily  injury,  but  also  all  forms  of  personal  interfer- 
ence with  the  movements  of  the  superior,  and  all  attemi)ts  to  constrain  him, 
or  to  interfere  with  his  freedom  of  motion  or  action.  If  abusive  or  threaten- 
ing language  accompany  any  of  the  acts  or  attempts  above  described,  such 
language  not  only  constitutes  an  essential  part  of  the  offense  charged,  but 
will  in  general  be  regarded  as  adding  materially  to  its  gravity. 

Threatening  and  Menacing  Language,  When  Chargeable. — ^ While  it  is 
well  settled  that  merely  abu&ive  or  insulting  language  does  not  constitute  au 
offense  within  the  meaning  of  the  Article,  if  such  language  be  highly 
threatening  or  menacing  in  character,  and  be  coupled  with  a  present  capacity 
to  carry  the  threats  into  effect,  it  will,  if  accompanied  by  acts  indicative  of 
such  intention,  constitute  an  "  offer  of  violence,"  and  as  sucli  will  be 
chargeable  under  the  Article. 

Article  22.  Any  officer  ar  soldier  who  begins,  excites,  causes,  or  joins 
in  any  mutiny  or  sedition,  in  any  troop,  battery,  company,  party,  jwst,  de- 
tachment, or  guard,  shall  suffer  death,  or  such  other  punishment  as  a  court- 
martial  may  direct. 

Prince  Rupert's  Code  contains  no  description  of  or  allusion  to  the 
specific  offense  of  mutiny,  although  in  the  14th  Article  of  that  Code  what 
are  called  "  mutinous  meetings  "  are  prohibited  under  severe  penalties.  The 
13th  of  the  Articles  of  James  11.  provides  that  "  no  man  shall  presume  so 
far  as  to  raise  or  cause  the  least  mutiny  or  sedition  in  the  army  upon  pain  of 
death,  or  such  other  punisliment  as  a  court-martial  may  think  fit." 

Although  a  penalty  was  prescribed  for  the  offense  in  the  Mutiny  Act, 
mutiny  is  not  defined  in  that  statute;  nor  is  a  definition  to  be  found  in  the 
British  Articles  of  War,  in  which  the  provision  respecting  the  offense  con- 
tinued to  appear  notwithstanding  its  annual  re-enactment  in  the  Mutiny 
Act.  The  Article  appears  in  substantially  its  present  form  as  Article  o, 
Section  2,  of  the  British  Code  of  1774.  as  Article  :5,  Section  '2,  of  the  Ameri- 
can Articles  of  177fj,  and  as  No.  7  of  the  Articles  of  1806. 


390  MILITARY  LAW. 

Mntiny  at  military  law  may  therefore  be  defined  to  be  an  unlawful 
opposing  or  resisting  of  lawful  military  authority,'  with  intent  to  subvert  the 
same,  or  to  nullify  or  neutralize  it  for  the  time.'  It  is  this  intent  which  dis- 
tinguishes mutiny  from  other  oiienses,  and  especially  from  those  with  which, 
to  the  embarrassment  of  the  student,  it  has  frequently  been  confused,  viz., 
those  punishable  by  the  21st  Article,  as  also  those  which,  under  the  name  of 
*' mutinous  conduct,"  are  merely  forms  of  violation  of  Article  62,  The 
offenses  made  punishable  by  this  Article  are  not  necessarily  "  aggregate  "  or 
joint  offenses; '  among  them  is  the  beginning  or  causing  of  a  mutiny,  which 
may  be  committed  by  a  single  person.  In  general,  however,  the  offense  here 
charged  will  be  a  concerted  proceeding;  the  concert  itself  going  far  to  estab- 
lish the  intent  necessary  to  the  legal  crime.*  Sedition  consists  in  the  raising 
of  a  commotion  or  disturbance  with  a  view  to  create  a  mutiny  or  to  incite 
revolt  against  military  authority. 

To  charge  as  a  capital  offense  under  this  Article  a  mere  act  of  insubordi- 
nation or  disorderly  conduct  on  the  part  of  an  individual  soldier  or  officer, 


'  The  offeuse  is  not  defiued  iu  Section  5359  of  the  Revised  Statutes  or  in  the  Naval 
Articles  of  War. 

•  Conipiue  the  definition  and  dcsciiption  of  the  offense  of  mutiny  or  revolt,  iu 
United  States  vs.  Smitli,  1  Mason,  147;  United  Stales  rs.  Haines,  5  id.,  276;  United 
States  vs.  Kelly,  4  AVash.,  528  ;  United  States  vs.  Thompson,  1  Sumner,  171  ;  United 
States  Ts.  Borden,  1  Sprugue,  376. 

^  Samuel,  254,  257  ;  G   O.   77,  War  Dept.,  1837  ;  do.  10,  Dept.  of  the  Missouri.  1863. 

''  Diu:.  .1.  A  Gen.,  30,  par.  1.  Soldiers  cannot  properly  be  charged  witli  the  offense 
of  joining  in  a  mutiny  ruider  this  Article  where  Il:eir  act  consisis  in  refusing,  in  com- 
bination, to  com])ly  with  an  unlawful  order.  Thus  where  a  detachment  of  volunteer 
soldiers  who,  under  and  by  virtue  of  Acts  of  Congress  specially  authorizing  the  enlist- 
ment of  volunteers  for  the  purpose  of  the  suppression  of  the  iebelli(  n.  and  with  the  full 
understanding  on  their  part  and  that  of  the  officers  by  whom  they  were  mustered  into  the 
service  that  they  were  to  be  emplo}-ed  solely  for  tl)is  purpose,  entered  into  enlistments 
expres.sed  in  terms  to  be  for  the  war,  and  after  doing  faitliful  service  during  the  war, 
and  just  before  tlie  legal  end  of  the  war,  but  when  it  was  jjractically  terminated,  and 
wlien  the  volunteer  organizations  were  being  mustered  out  as  no  longer  required  for  the 
prosecution  of  the  war,  were  ordered  to  luarch  to  tiie  plains,  and  to  a  region  far  distant 
from  the  theatre  of  the  late  war,  and  engage  in  fighting  Indians  wholly  unconnected  as 
allies  or  otherwise  with  the  recent  enemy,  and  thereupon  refused  together  to  comply 
with  such  orders,  held  that  they  were  not  chargeable  witli  mutiny.  Y/bile  by  the  strict 
letter  of  their  contracts  they  were  sul)ject  to  be  employed  upon  any  military  service  up 
to  the  last  day  of  their  terms  of  enlistment,  the  public  acts  and  history  of  tlie  time  made 
it  perfectly  clear  that  lliis  enlistment  was  entered  into  for  the  jmrticular  purpose  and  in 
contemplation  of  tlie  particular  service  above  indicated,  and  to  treat  the  parlies  as  bound 
to  anotlier  and  distinct  service,  and  liable  to  capital  punishment  if  they  refused  to  per- 
form it,  was  technical,  unjust,  and  in  substance  illegal.     Ibid.,  31,  par.  3. 

In  a  case  where  a  brief  mutiny  among  certain  soldiers  of  a  coloied  regiment  was 
clearly  provoked  by  ine.\cusal)]e  violence  on  the  part  of  their  officer,  tlie  outbreak  not 
having  been  premeditated,  and  the  men  having  lieen  prior  thoreto  suboniinaie  and  well 
conducted,  adrised  that  a  sentence  of  death  impo.«ed  by  a  court-martial  iipon  one  of  tlie 
alleged  mutineers  should  be  mitigated  and  the  officer  himself  brought  to  trial.  Simi- 
larly advised  in  the  cases  of  sentences  of  long  terms  of  imprisonment  imposed  upon 
sundry  colored  soldiers  who,  without  previous  ]Mirpose  of  revolt,  had  been  provoked 
into  momentary  mutinous  conduct  by  the  recklessness  of  their  officer  in  firing  upon 
them  and  wounding  several  in  order  to  supjiress  certain  insubordination  which  might 
apparently  have  been  quelled  by  ordinary  methods.     Ibid.,  32,  par.  4. 


THE  ARTICLES  OF   WAR.  391 

unaocompanied  by  tlie  intent  above  indicated,  is  irregular  and  improper.' 
Such  an  act  should  in  general  be  charged  under  Article  '^0,  21,  or  <j:i.' 

Seeing  by  how  slight  means  the  greatest  mischief  maybe  engendered,  by 
the  rapid  spread  of  an  infectious  spirit  in  large  and  constantly  embodied 
numbers,  the  policy  of  tlie  Articles  respecting  mutiny '  is  "  to  beat  down 
and  repress,  in  the  beginning,  the  first  act  or  speecli  tliat  may  lead  or  liave 
a  tendency  to  lead  to  a  fatal  consecpience.  This  Article  therefore  makes 
it  a  cai)ital  offense  in  any  oHicer,  non-commissioned  otticer,  or  soldier 
(capable,  however,  of  mitigation,  under  the  circumstances  of  the  case)  who 
shall  begin,  excite,  cause,  or  join  in  any  mutiny  or  sedition;  rendering  him 
who  shall  lead  or  follow^  in  the  circumstances  constituting  the  offense,  or 
who  shall  take  any  part  in  it,  either  in  its  incipient  state  or  when  it  shall 
be  complete,  equally  liable  to  the  heaviest  2)unishnient." 

Article  23.  Amj  officer  or  soldier  v:lio,  leing present  at  anij  mutiny  or 
sedition,  does  not  use  his  iitmost  endeavor  to  suppress  the  same,  or,  having 
knowledge  of  any  intended  mutiny  or  sedition,  does  not  icithout  delay  give 
information  thereof  to  his  commanding  officer,  shall  suffer  death,  or  such 
other  punishnienf  as  a  court-martial  may  direct. 

Article  15  of  the  Prince  Rupert  Code  contains  the  following  require- 
ment: "No  Officer  or  Souldier  shall  use  any  words  tending  to  sedition, 
mutiny  or  uproar,  upon  pain  of  suffering  such  punishment  as  shall  be 
inflicted  upon  him  by  a  Court-Martial.  And  whoever  shall  hear  any 
mutinous  or  seditious  words  spoken,  and  shall  not  with  all  possible  speed 
reveal  the  same  to  his  superior  Officers  or  Commanders,  shall  be  punished  as 
a  Court-martial  shall  think  fit."  This  is  repeated  in  substance  as  Article 
14  of  the  King  James  Code  of  1672,  and  was  embodied  in  subsequent  codes 
until  that  of  177-4,  in  which  it  ajipears,  in  about  its  present  form,  as 
Article  4,  Section  2.  It  was  embodied  as  Article  4,  Section  2,  in  the 
American  Articles  of  1776,  and  as  No.  8  of  the  Articles  of  1806. 

Duty  of  Suppression. — This  provision,  extending  the  policy  set  forth  in 
the  preceding  Article,  makes  it  a  military  offense  for  any  officer  or  non-com- 
missioned officer  to  stand  by  whilst  any  mutiny  or  sedition  is  in  the  act  of 
being  committed  and  not  use  his  utmost  endeavor  to  suppress  it.*     The  duty 

•  Dig.  J.  A.  Geu..  31,  par.  1.  See  also,  G.  O.  7,  War  Dept.,  1848;  do.  115,  Dept.  of 
Washington,  186.1:  G  C  M.  O.  78.  Dept.  of  ilie  Mi.s.somi.  1873;  United  States  vs.  Smith. 
1  Mason,  147;  United  States  vs.  Kelly,  4  Wash.,  528;  United  Stales  vs.  Thompson,  1 
Sumner,  171. 

'Dig.  J.  A.  Gen..  30,  par.  1.  Where  a  body  of  sohliers,  under  the  rcason.iljle  but 
erroneous  belief  that  their  ieiral  term  of  service  had  fully  expired,  quietly  stacked  their 
aims  and  refused  to  fall  in  and  march  when  ordered  to  do  so  by  their  conimaiiiliut:  olti- 
cer,  and  having  been  brought  to  trial  on  a  charge  of  nuitiny.  were  found  hv  the  court 
not  guilty  of  that  charge  but  guilty  only  of  "conduct  to  the  "prejudice  of  good  ordei-  and 
military  discipline."  and  were  moderately  .sentenced,  advised  that  this  was",  on  tlie  whole, 
a  wise  judgment,  and  would  properly  be  approved  by  the  reviewing  authoritv.  Ibid  ' 
31,  par.  3.  =  j  . 

'  Articles  22.  23,  and  24. 

♦Samuel,  258. 


392  MILITARY  LAW. 

or  suppression,  in  any  case,  is  measured  by  the  rank  and  authority  of  tlie 
several  military  persons  in  whose  presence  acts  of  mutiny  or  sedition  are 
taking  place,  and  each  person,  within  the  scope  of  his  authority  and  office, 
is  obliged,  by  the  terms  of  tlie  Article,  to  use  his  utmost  endeavor  to  suppress 

the  same. 

Failure  to  Give  Information  ;  Misprision. — The  last  clause  of  the  Article, 
requiring  disclosure  of  any  intended  mutiny  or  sedition,  creates  an  offense 
of  negative  misprision  on  the  part  of  any  military  person  who,  having  knowl- 
edge of  any  intended  mutiny  or  sedition,  does  not  without  delay  give  infor- 
mation thereof  to  his  commanding  officer.  What  constitutes  the  "  utmost 
endeavor,"  and  what  degree  of  diligence  in  giving  information  of  the  exist- 
ence of  an  intended  mutiny,  are  circumstances  to  be  determined  by  the 
court  from  the  evidence  submitted  in  a  particular  case.  It  is  not,  "  in  such 
cases,  the  question  what  might  be  achieved  by  an  effort  of  some  fortunate 
and  happy  genius,  but  what  must  be  done  and  what  all  must  know,  and  be 
taken  to  be  competent  to  do,  by  the  exertion  of  the  common  power  of  an 
ordinary  mind,  in  the  plain  path  of  its  duty,  under  those  direct  and  honest 
impressions  of  which  none  can  be  supposed  insensible."  ' 

There  is  and  must  be,  in  these  cases,  a  discretion  vested  in  the  court; 
and  as  the  safety  of  every  member  of  the  court,  as  well  as  of  the  accused, 
must  consist  in  the  due  exercise  of  it,  there  cannot  be  any  unreasonable  fear 
that  it  will  at  any  time  be  abused." 

Use  of  Force  in  the  Suppression  of  Mutiny. — Mutiny  has  been  seen  to 
consist  in  a  revolt  against,  or  in  forcible  resistance  or  opposition  to,  consti- 
tuted military  authority.  By  the  express  terms  of  the  23d  Article  it  is  made 
the  duty  of  every  officer  or  soldier  who  is  "  present  at  any  mutiny  or  sedition 
to  use  his  utmost  endeavor  to  suppress  the  same."  The  duty  of  suppression 
so  imposed  is  instant  and  immediate,  and  will  require  the  officer  upon  whom 
it  devolves  to  oppose  force  with  force  in  the  suppression  of  the  mutiny  and 
the  restoration  of  order.  The  force  contemplated  in  the  Article,  however, 
is  not  that  due  to  a  personal  exercise  of  physical  strength  on  the  part  of  the 
officer.  The  force  to  be  employed  should  in  general  consist  of  members  of 
the  guard,  or  of  inferior  officers  or  enlisted  men,  summoned  by  the  superior 
and  acting  under  his  orders;  for  in  no  other  way  can  he  assure  himself  that 
the  precise  amount  of  force — and  no  more — is  being  employed  to  accomplish 
the  purpose. 

Amount  of  Force. — The  force  to  be  employed  in  quelling  an  affray  or 
maintaining  tlie  peace  is  such  only,  in  kind  or  amount,  as  is  necessary  to 
restore  order  and  to  secure  and  subdue  the  offenders.  It  does  not  consist  in 
repeated  blows  inflicted  by  way  of  punishment  for  past  deeds,  but  must  be 
preventive  in  character,  and  must  not  exceed  the  strict  necessity  of  the  case 


Samuel,  261.  ^  Ibid.,  2m. 


THE  ARTICLES   OF   WAR.  393 

requiring  sucli  acts  of  prevention.  No  officer  has  authority,  in  any  case,  to 
inflict  pnnislinient  for  pavst  acts  or  offenses  of  any  kind.  \or  can  an  officer 
so  situated  make  use  of  personal  violence  toward  an  inferior  officer  or  soldier, 
save  in  a  case  of  imperious  and  urgent  necessity  wliicli  will  not  admit  of 
delay — as  in  self-defense  or  to  prevent  the  commission  of  a  crime — or  where 
the  i)roper  assistance  in  the  way  of  armed  force  is  not  available  or  cannot  be 
relied  upon,  and  the  occasion  is  one  demanding  instant  action  on  the  part 
of  the  officer  responsible  for  tlie  restoration  of  order  and  the  maintenance  of 
discipline.' 

Article  24,  All  officers,  of  loliat  condition  soever,  have  j)ou'cr  to  part 
and  quell  all  quarrels,  frays,  and  disorders,  whether  among  persons  belong- 
ing to  his  otvn  or  to  another  corps,  regiment,  troop,  hattery,  or  company,  and 
to  order  officers  into  arrest,  and  non-co/nnnssioncd  officers  and  soldiers  into 
confinement,  who  take  part  in  the  same,  until  their  proper  superior  officer  is 
acquainted  therewith.  And  whosoever,  beitig  so  ordered,  refuses  to  obey  such 
officer  or  non-commissioned  officer,  or  d?'aws  a  weapon  upon  hi?}i,  shall  be 
punished  as  a  court-martial  may  direct. 

This  requirement,  in  the  earlier  British  codes,  appears  in  connection 
with  the  provisions  respecting  duels  and  the  sending  of  challenges. 
Quarrels,  frays,  disorders,  and  the  like  are  acts  in  themselves  highly  obnox- 
ious to  discipline,  but  less  serious  as  military  offenses  than  mutiny  or  sedi- 
tion. In  its  present  form  the  provision  appears  as  Article  4,  Section  7,  of 
the  British  Code  of  1774,  as  Article  4,  Section  7,  of  the  American  Articles 
of  1770,  and  as  No.  27  of  the  Articles  of  180G;  it  appears  first  in  connec- 
tion with  the  provisions  respecting  mutiny  in  the  Articles  of  1874. 

The  first  clause  of  the  i)resent  Article  is  a  modification  of  the  statutory 
rule  of  interpretation  in  respect  to  the  meaning  of  the  word  "officer,"  as 
used  in  the  Articles  of  War,  which  is  contained  in  Section  1342  of  the 
Revised  Statutes.  The  term  "officer,"  as  used  in  this  Article,  being 
coupled  with  the  words  "of  what  condition  soever"  is  held  to  include 
within  its  scope  all  classes  of  officers,  commissioned  and  non-commissioned, 
each  of  whom  is  required  to  take  appropriate  action  in  a  case  of  disturbance 
or  disorder  such  as  is  contemplated  in  the  last  clause  of  the  Article.* 

'  See  General  Orders  No.  53,  A.  G.  O..  of  1852:  G.  O.  Nos.  2,  4,  and  68.  ibid.,  of  1853. 
"  It  is  a  direct  violation  of  law  and  duty  for  an  officer  to  strike  or  offer  other  vio- 
lence to  the  person  of  n  soldier  except  when  absolutely  necessiiry  to  quell  mutinous  con- 
duct." G.  O.  68,  A.  G.  O.,  1853.  "  The  only  case  in  which  personal  violence  can  be 
justified  is  that  where  extreme  necessit}'  recjuires  it,  in  self-defense,  to  prevent  instant 
and  immediate  danger."     G.  O.  2,  A.  G.  O. ,  1853. 

'  It  is  a  principle  of  tlie  common  law  that  any  bystander  may  and  should  arrest  an 
affrayer.  1  Hawkins  P.  C,  c.  63.  s.  11;  Timothy  vs.  iSimpson,  1  C.  M  iS:  R  762. 
765;  Philips  vs.  Trull,  11  Johns.,  487.  And  that  an  otiicer  or  soldier,  by  entering  the 
military  service,  docs  not  cease  to  be  a  citiz<'n,  and  as  a  citizen  is  authorized  and  Unind 
to  put  a  stop  to  a  breach  of  the  peace  committed  in  his  presence,  has  been  specifically 
held  by  the  atithorities.  Burdett  vs.  Abbott,  4  Taunt.,  449;  Bowyer.  Com.  on  Const. 
L.  of  Eng.,  499;   Simmons,   ^^  1096-1  lUO.     This  Article   is  thus  an  application  of  an 


394  '  MILITARY  LAW. 

As  military  discipline  consists  in  the  quiet  and  orderly  performance  of 
military  duties,  all  departures  from  such  quiet  performance,  whether  in  the 
nature  of  strife  or  disorder,  are  equally  obnoxious  to  good  discipline  as  tend- 
ing to  disturb  the  orderly  conduct  of  a  marcli,  or  to  interrupt  the  peace  and 
quiet  of  the  camp  or  garrison.  The  24th  Article  relates  to  disturbances  or 
other  infractions  of  good  order  less  serious  in  importance  than  sedition  or 
mutiny,  and  not  only  requires,  but  in  express  terms  empowers,  certain  classes 
oi  officers  to  quell  or  put  an  end  to  the  same,  and  to  command  such  assist- 
ance as  may  be  necessary  to  accomplish  that  purpose.  The  duty  required 
in  the  Article  comes  into  being  upon  the  occurrence  of  the  disorder,  or  upon 
the  receipt  of  knowledge  of  its  existence,  and  ceases  to  exist  only  when  the 
disturbance  has  ceased  to  exist  or  the  proper  superior  officer  has  been 
"acquainted  therewith."  An  officer  or  non-commissioned  officer  who  has 
undertaken  the  execution  of  the  duty  defined  in  the  statute  should,  after 
such  notification,  if  inferior  in  rank  to  tlie  commanding  officer,  forthwith 
jilace  himself  under  his  orders  pending  the  suppression  of  the  existing 
disorder.' 

Article  25.  No  officer  or  soldier  shall  use  any  reproacltful  or  provolcing 
speeches  or  gestures  to  another.  Amj  officer  who  so  offends  shall  be  put  in 
arrest.  A  ny  soldier  ivho  so  offends  shall  be  confined,  and  required  to  ask 
pardon  of  the  party  off'ended  in  the  presence  of  his  commanding  officer. 

Aeticle  26.  No  officer  or  soldier  shall  setid  a  challenge  to  atiother  officer 
or  soldier  to  fight  a  duel,  or  accept  a  challenge  so  sent.  Any  officer  ivho  so 
offends  shall  be  dismissed  from  the  service.  Any  soldier  who  so  off'ends  shall 
suffer  such  corporal  pimishment  as  a  court-martial  may  direct. 

Article  27.  Any  officer  or  no7i-com,missioned  officer  commanding  a 
gtiard  who  knowingly  and  loillingly  suff'ers  any  j)erso7i  to  go  forth  to  fight 
a  duel  shall  be  punished  as  a  challenger;  and  all  seconds  or  promoters  of 
duels,  and  carriers  of  challenges  to  fight  dtiels,  shall  be  deemed  p7-inci2)als, 
and  jmnished  accordingly.     It  shall  be  the  duty  of  any  officer  commatiding 


established  commou-law  doctrine  to  the  relations  of  the  military  service.  See  its 
anplicatioii  illustrated  iu  the  following  General  Orders:  G.  O.  4,  War  Dept.,  1843;  do. 
03,  Dept.  of  the  Tennessee,  1863;  do.  104,  Dept  of  the  Mis.souri,  1863;  do.  52.  Dept.  of 
the  South,  1871;  do.  92,  id..  1872.     Dig.  .J.  A.  Gen.,  32,  note  2. 

'It  is  a  significant  fact,  serving  to  briiiir  prominently  into  view  the  essential  differ- 
ence between  military  and  civil  jurisprudence,  that  the  words  used  to  define  tlie  offenses 
created  by  this  Article  are  eitlier  not  known  to  the  common  law  or  are  but  partially  inter- 
l)reted  in  that  system  of  jurisprudence.  To  constitute  a  quarrel,  actual  violence  is  not 
necessary,  and  the  act  may  consist  in  mere  abusive,  violeiU,  or  angry  words  participated  in 
by  two  or  more  persons.  If  actual  violence  be  used,  the  offense  becomes  an  affray,  which 
may  be  defined  as  "  the  fighting  of  two  or  more  persons  in  some  public  place,  to  the  ter- 
ror of  the  public."  It  is  essential  to  the  oflensc  of  participating  in  Jin  affray  that  the 
fighting  should  be  without  premeditation;  if  there  be  such  premeditation  or  concerted 
action,  the  offense  partakes  of  the  character  of  a  riot.  Disorder  is  an  offense  peculiarly 
obnoxious  to  military  discipline,  and  may  consist  in  an  actual  disturbance  or  interrup- 
tion of  discipline,  or  iu  conduct  calculated  to  disturb  the  quiet  and  orderly  performance 
of  military  duty  in  a  camp  or  garrison. 


THE  ARTICLES  OF   WAR. 


395 


an  army,  regiment,  troop,  ballenj,  companij,  post,  or  detachment  who  knows 
or  has  reason  to  beliere  that  a  challenye  has  been  given  or  accepted  by  any 
officer  or  enlisted  man  under  his  command  immediately  to  arrest  the  offender 
and  bring  him  to  trial. 

Article  28.  Any  officer  or  soldier  tuho  upbraids  another  officer  or  soldier 
for  refusing  a  challenge  shall  himself  be  punished  as  a  challenger;  and  all 
officers  and  soldiers  are  hereby  discharged  from  any  disgrace  or  opinion  of 
disadvantage  which  might  arise  from  their  having  refused  to  accept  chal- 
lenges, as  they  will  only  have  acted  in  obedience  to  the  law  and  have  done 
their  duty  as  good  soldiers,  who  subject  themselves  to  discipline. 

The  2511),  26th,  2Tth,  and  28th  Articles,  having  a  common  history  and 
purpose,  will  be  consider  together.     All  codes  of  military  discipline  subse- 
quent to  the  introduction  of  the  standing  army  in  England  have  contained 
provisions  calculated  to  repress,  and  eventually  to  suppress,  the  practice  of 
duelling.     In  Article  36  of  the  Prince  Rupert  Code  "  reproachful  or  pro- 
voking speeches  or  acts  "  are  prohibited,  as  are  "  challenges  to  fight  duels"  ; 
and  it  is  declared  to  be  a  military  offense  for  an  officer  or  soldier  to  "  upbraid 
another  for  refusing  a  challenge."     Duelling  is  expressly  prohibited,  and 
officers  commanding  guards  are  forbidden  to  "  suffer  either  soldiers  or  officers 
to  go  forth  to  a  duel  or  private  fight."     Finally,  "  in  all  cases  of  duels  the 
seconds  shall  be  taken  as  principals  and  punished  accordingly."    The  several 
requirements  of  the  Articles  of  1874  relating  to  this  subject  can  be  traced 
without  difficulty  through  the  King  James  Articles  of   1G8G  to  the  compre- 
hensive provisions  of  the  Prince  Rupert  Code  above  cited.     It  is  proper  to 
remark,  however,  that  in  the  American  Articles,  as  in  the  English  codes  of 
the  eighteenth  century,  duelling,  as  such,  is  not  expressly  prohibited,'  the 
provisions  respecting  challenges,  promoters,  and  the  like  being  in  the  nature 
of  measures  of  prevention.     The  British  Articles  in  respect  to  this  subject 
underwent  considerable  modification  in  1844,  when  duelling,  as  such,  was 
expressly  prohibited;   as  so  modified  the  Articles  were  embodied  in  the 
permanent  yVrmy  Discipline  Act  of  1881. 

Reproachful  Speeches.  Gestures,  etc. — The  obvious  intent  of  this  provi- 
sion would  seem  to  be  to  check  by  direct  and  prompt  means,  which  the 
Article  favors,  the  earliest  manifestation  of  a  spirit  or  disposition  to  quarrel, 
by  subjecting  the  offender,  without  any  formal  charge,  to  immediate  arrest  or 
imprisonment;  and  to  make  such  honorable  atonement  for  the  provocation 
as  the  case  appears  to  rerpiire  in  the  presence  of  liis  commanding  officer. 
The  course  of  this  summary  remedy  is  peculiarly  well  adapted  to  affronts 
^lablicly  offered,  which  the  Article  has  especially  in  view,' 

'  It  may  be  uoted  tliat  our  Articles  of  War,  unlike  the  British,  fail  to  make  engag- 
ing in  a  duel  punishable,  as  a  specific  militniy  offense.  Such  an  act,  therefore,  would, 
*^  such,  be  in  gt-neral  chargeable  oulv  uruler  Article  62.     Dig.  J.  A.  Gen.,  33,  par.  1. 

*  Samuel,  351. 


^96  MILITARY  LAW. 

The  25th  Article  confers  no  jurisdiction  or  power  to  punish  on  courts- 
martial,  but  merely  authorizes  the  taking  of  certain  measures  of  prevention 
and  restraint  by  commanding  officers;  i.e.,  measures  preventive  of  serious  dis- 
orders such  as  are  indicated  in  the  two  following  Articles  relating  to  duels.' 
If  the  use  of  reproachful  speeches  constitutes  a  military  offense,  the  wrong- 
ful act  or  conduct  would  constitute  a  violation  of  the  G2d  Article  of  War,  and 
Bhould  be  charged  as  such. 

The  arrest  contemplated  in  this  Article,  like  that  authorized  in  Article 
65,  is  imposed  by  the  commanding  officer,  who  is  empowered  by  a  later 
clause  to  confine  an  enlisted  man  for  the  same  offense,  and  to  require  him 
* '  to  ask  pardon  of  the  party  offended  ' '  in  his  presence.  The  power  con- 
ferred is  clearly  in  the  nature  of  a  precautionary  measure,  and,  though  not 
in  terms  subject  to  the  restrictions  contained  in  the  70th  and  71st  Articles, 
would  not  authorize  a  commanding  officer  to  prolong  an  arrest  indefinitely 
or  after  the  occasion  for  its  exercise  had  passed  away." 

Challenges, — The  26th  Article  contains  the  requirement  that  "  no  officer 
or  soldier  shall  send  a  challenge  to  another  officer  or  soldier  to  fight  a  duel 
or  accept  a  challenge  so  sent. " 

It  is  the  object  of  this  as  of  the  other  Articles  now  under  consideration 
to  check  or  resist  any  direct  or  indirect  approach  to  duelling  in  every  one 
of  its  stages.  To  bring  the  party  within  the  scope  of  the  Article,  it  is  not 
material  whether  the  challenge  be  accepted  or  not;  it  is  enough  if  it  be  given 
or  sent.' 

To  establish  that  a  challenge  was  sent,  there  must  appear  to  have  been 
comnmnicated  by  one  party  to  the  other  a  deliberate  invitation  in  terms  or 
in  substance  to  engage  in  a  personal  combat  with  deadly  weapons,  with  a 
view  of  obtaining  satisfaction  for  wounded  honor."  The  expression  merely 
of  a  willinsrness  to  fight,  or  the  use  simply  of  language  of  hostility  or 
defiance,  will  not  amount  to  a  challenge.  On  the  other  hand,  though  the 
language  employed  be  couched  in  ambiguous  terms,  with  a  view  to  the 
evasion  of  the  legal  consequences,  yet  if  the  intention  to  invite  to  a  duel  is 
reasonably  to  be  implied, — and  ordinarily,  notwithstanding  the  stilted  and 
obscure  verbiage  employed,  this  intent  is  quite  transparent, — a  challenge  will 
be  deemed  to  have  been  given.     And  the  intention  of  the  message,  where 


'  Diff.  .1.  A   Gen.,  33. 

» In  the  British  service  this  Article  has  been  construed  in  connection  with  the  23d 
Article,  which  confers  upon  "  ;ill  officers,  of  whiit  condition  soever,"  power  to  part  and 
quell  quarrels,  frays,  and  disorders.  The  Article  proceeds  upon  the  theory  that  the 
speeches  and  gestures  to  which  it  relatis  are  oi^en  and  notorious,  and,  as  such,  calling  for 
Immediate  interference.  Any  military  officer  standing  by,  as  well  as  the  person  offended, 
would  be  authorized  to  make  the  arrp.st,  for  such  power  is  given  to  officers  of  every 
description  to  quell  all  q\iarrels  and  frays;  and  as  the  speeches  and  gestures  in  question 
are  regarded  by  this  Article  as  having  a  tendency  to  those  consequences  and  are  therefore 
interdicted,  they  appear  to  authorize  the  same  interference.     Samuel,  351. 

*  Compare  Samuel,  383. 

*  Compare  the  definition  in  2  Wharton  Cr.  L.,  §§  2674-2679. 


lUE  AUTlCLEiS   OF    WAR. 


397 


doubtful  upon  its  face,  may  be  illustrated  m  evidence  by  proof  of  tbe  cir- 
cumstances under  which  it  was  sent,  and  especially  of  the  previous  relations 
of  the  parties,  the  contents  of  other  communications  between  them  on  the 
same  subject,  etc'  And  technical  words  in  an  alleged  challenge  may  be 
explained  by  a  reference  to  the  so-called  duelling  code.' 

Challenges,  How  Determined. — It  is  for  the  court  to  determine  whether 
the  comiuutucution  set  forth  in  the  charges  and  established  in  evidence  con- 
stitutes a  challenge  within  the  meaning  of  the  Article.  "  No  general 
description  can  be  laid  down  of  the  precise  words  which  amount  to  a  chal- 
lenge; for  there  is  no  particular  phraseology,  no  set  form,  necessary  to  it  or 
by  which  it  can  be  known.  Whether  there  be  an  actual  summons  to  the 
field  either  through  the  principal  or  second,  or  such  a  defiance  thrown  out 
as  shall  appear  a  direct  invitation  to  it,  though  it  cast  the  burden  of  acting 
in  all  the  incidents  leading  up  to  the  combat  on  the  other  party,  it  may 
equally  be  held  in  the  nature  and  degree  of  a  challenge."  "It  is  not 
requisite  that  there  should  be  a  formal  invitation  to  fight;  but  a  mere  hint 
or  suggestion  that  one  of  the  parties  is  prepared  for  it  has  been  held  by  a 
court-martial  to  be  tantamount  to  a  challenge.  In  this  view  it  is  as  much 
an  offense  to  use  words  or  insinuations  that  indicate  a  disposition  to  fight,. 
and  which  may  act  as  a  provocative  and  defiance  to  another  to  meet  such  dis- 
position, as  if  the  most  unequivocal  challenge  had  been  given."  ' 

As  the  offense  is  in  its  nature  a  private  one,  there  cannot  be  expected  in 
many  instances  any  abundant  evidence  of  it.  The  court  will  therefore  have 
to  govern  itself  not  so  nmch  by  the  quantity  as  by  the  quality  of  the  proof/ 

Permitting  Persons  to  Go  Forth  to  Fight  Duels. — The  first  clause  of  the 
27th  Article  makes  it  a  military  offense  for  "an  officer  or  non-commissioned 
officer  commanding  a  guard  knowingly  and  willingly  "  to  suffer  any  person 
to  go  forth  to  fight  a  duel.  The  gravity  of  the  offense  so  created  is  meas- 
ured by  the  penalty  wdiich  is  required  to  be  imposed  upon  conviction,  which 
is  declared  to  be  the  same  as  that  involved  in  the  oifense  of  being  a  chal- 
lenger. The  essence  of  the  otfcnse  is  the  non-exertion  of  a  present  power  to 
prevent  a  known  unlawful  purpose.  As  it  is  the  knowledge  of  the  intention 
of  the  parties  going  forth,  and  the  non-resistance  of  it,  which  makes  the 
crime,  the  existence  of  such  knowledge  must  be  clearly  evidenced  before  the 

'  On  the  general  subject  of  challenges,  and  the  question  what  constitutes  a  challenee. 
Bee  the  principal  cases  of  the  scndinir  of  challen£rcs  in  our  service  as  published  in  G.  O. 
64,  A.  G.  O.,  1827;  do.  m,  41.  id.,  1835;  do.  2,  War  D.'pt,,  18r)8:  do.  3:{0.  id.,  1863;  do. 
11,  Army  of  the  Potomac,  1861;  do.  46,  Dept.  of  the  Gidf,  1863;  do.  223,  Dept.  of  the 
Missouri,  1864;  do.  130,  id.,  1872;  do.  33.  Dept.  and  Army  of  the  Tennessee,  1864.  And 
compare  Commonwealth  m.  Levy.  2  Wheeler  Cr.  C,  245:  do.  vs.  Tibbs,  1  Dana,  524  ; 
do  vs.  Hart,  6  J.  J.  Marsh.,  119  ;"  State  vs.  Taylor,  1  So.  Ca.,  108  ;  do.  t$.  Strickland,  2 
Nott  &  McCord.  181  ;  Ivev  vs.  State,  12  Ala.,  277;  Aulger  w.  People,  34  Ilia.,  486,  2 
Bishop  Cr.  L..  J<  314;  Samuel.  384-387. 

«  Disr.  J.  A.  Gen  ,  33;  State  ts.  Gibbous,  1  South,  51. 

»  Samuel,  384. 

*  Hid.,  385. 


398  MILITARY    LAW. 

coart-martial  before  a  conviction  can  be  had.'  The  somewhat  comprehen- 
sive Umguage  used  in  the  clause  requiring  tlie  commander  of  a  guard  to 
prevent  "  any  person  "  from  going  forth  to  fight  a  duel  has  never  received 
executive  interpretation,  but  has  always  been  construed  to  apply  to  military 
persons  only;  the  movements  of  civil  persons  not  being  subject  to  military 
regulation  or  control. 

The  second  clause  of  the  27th  Article  makes  "  all  seconds  or  j^romoters 
of  duels,  and  carriers  of  challenges  to  tight  duels,"  principals,  and  imposes 
upon  the  several  offenses  thus  described  the  character  of  principal  offenses, 
and  requires  the  same  penalty  to  be  imposed  in  the  event  of  conviction.  By 
seconds  are  intended  those  who  accompany  the  principals,  on  one  side  or  the 
other,  to  the  ground  on  which  the  duel  is  to  be  fought,  regulating  the  terms 
of  it,  prescribing  the  course  of  j^roceeding,  and  seeing  that  they  are  strictly 
observed  on  both  sides.  They  are  commonly  denominated,  sometimes  with 
no  visible  discrimination,  the  friends  of  the  respective  parties.'  It  may  not 
be  so  easy  to  assign  a  precise  meaning  to  the  term  "  promoters,"  who  are 
included  in  the  same  line  with  seconds  and  carriers  of  cliallenges.  Such 
terms,  it  is  presumed,  applies  to  parties  who,  whether  concerned  or  not  in 
the  matter  of  dispute,  take  any  share  in  urging  or  provoking  those  impli- 
cated in  it  to  send  to  one  or  the  other  a  defiance  to  the  field.' 

Duty  of  Commanding  Officers. — The  last  clause  of  the  27th  Article 
makes  it  the  duty  of  "any  officer  commanding  an  army,  regiment,  troop, 
battery,  company,  post,  or  detachment  who  knows  or  has  reason  to  believe 
that  a  challenge  has  been  given  or  accepted  by  any  officer  or  enlisted  man 
under  his  command  immediately  to  arrest  the  offender  and  bring  him  to 
trial." 

This  clause  is  directory  in  character  and  imposes  a  special  responsibility 
upon  the  commanding  officers  of  the  several  units  of  organization  above 
named  in  the  matter  of  preventing  hostile  meetings,  and  of  bringing  the 
parties  to  them  to  a  speedy  trial.  This  clause  also,  when  taken  in  connec- 
tion with  the  28th  Article,  clearly  defines  the  policy  of  the  Government  in 
respect  to  the  practice  of  duelling,  confers  upon  the  measures  of  prevention 
already  described  an  additional  sanction,  and  removes  any  doubt  that  may 
have  arisen  in  the  mind  of  a  military  commander  as  to  his  duty  in  the  case. 

Article  29.  Antj  officer  who  thinks  himself  wronged  hy  the  comniandiyig 
officer  of  his  regiment,  and,  upon  due  application  to  such  commander,  is 
refused  redress,  may  complain  to  the  general  commanding  in  the  State  or 
Territory  where  such  regiment  is  stationed.  The  general  shall  examine  into 
said  complaiyit  and  take  proper  measures  for  redressing  the  lorong  complained 
of ;  and  he  shall  as  sooyi  as  possible  transmit  to  the  Department  of  War  a 
true  statement  of  such  complaint,  with  the  proceedings  had  thereon. 

'  Samuel,  388.  '  Ibid.,  390.  '  Ibid.,  394. 


TUE  ARTICLES  OF  WAR.  39^ 

This  provision  cau  be  traced  through  the  King  James  Articles  of  1G72 
to  Article  08  of  the  Prince  Kupert  Code,  wliich  contains  the  requirement 
tliat  *'  if  any  Inferiour  Otlicer,  either  of  horse  or  foot,  be  wronged  by 
liis  Officer,  he  may  complain  to  his  Colonel,  or  other  Superiour  Officer 
of  the  Kegiment,  who  is  to  redress  the  same,  upon  due  proof  made  of 
the  wrong  done  him ;  but  if  he  fail  therein,  the  party  grieved  is  to  apply  to 
the  General  officer  for  redress ;  and  if  the  accusation  be  false,  the  complain- 
ant is  to  be  punished  at  the  discretion  of  a  Court-Martial."  In  the  British 
Articles  of  1774,  from  which  our  own  Articles  were  adopted,  this  provision 
appears  as  Article  1  of  Section  12.  The  last  clause,  however,  requiring  the 
complainant  to  be  punished  by  a  court-martial  in  the  event  of  his  accusa- 
tion being  found  to  be  false,  is  omitted.  To  insure  a  full  hearing  in  appeal, 
the  British  Articles  of  1774  permit  the  complainant,  if  redress  be  denied  liim 
by  his  regimental  commander,  to  ajipeal  to  the  general  commanding-in-chief, 
"  who  is  hereby  required  to  examine  into  the  said  complaint;  and,  either  by 
liimself,  or  by  Our  Secretary  at  AVar,  to  make  his  report  to  Us  thereupon,  in 
order  to  receive  Our  further  Directions."  As  there  was  no  executive  head 
to  the  Government  under  the  Continental  Congress,  nor  to  that  under  the 
Articles  of  Confederation,  the  appeal  above  described  was  to  be  taken  to  the 
general  commanding-in-cliief  the  forces  of  the  United  States,  who  was 
"  required  to  examine  into  the  said  complaint  and,  either  by  himself  or  the 
Board  of  War,  to  make  rei)ort  to  Congress  thereupon,  in  order  to  receive 
further  directions."  '  The  right  of  appeal  thus  created  by  the  British  Code 
and  recognized  by  the  American  Articles  of  1776  was  considerably  restricted 
in  the  Articles  of  1806,  since  it  was  required  to  be  submitted,  not  to  the 
general  commanding  the  Army,  but  "  to  the  general  commanding  in  the 
State  or  Territory  where  the  regiment  of  the  complainant  was  stationed."'" 


'  It  will  be  observed  that  this  Article  does  not  in  terms  require  the  general  com- 
manding-in-chief to  take  steps  to  redress  the  wrong.  For  that  reason  the  requirement 
was  repealed  by  a  liesolution  of  Congress  of  April  14,  1777,  and  replaced  b}'  a  new 
Article  requiring  tlie  commanding  general  to  "take  measures  to  redress  the  wrong  "and 
report  the  case  to  Congress. 

'  It  is  proper  to  remark,  in  this  connection,  that  if,  as  between  persons  subject  to 
military  discipline,  that  is,  "between  comrades,  actions  of  asstuilt  or  battery  had  been 
encouraged  by  the  common  law,  such  cases  might  have  been  abundant,  ami  if  actions 
for  torts,  as  false  imprisonment,  slander,  libel,  had  been  entertained,  the  discipline  of  the 
Army  would  long  since  have  been  destroyed.  From  the  earliest  jieriod.  therefore,  the 
Articles  of  War  have  provided  that  all  these  offenses  should  be  referred  to  and  decided 
by  the  officers  in  superior  command,  an  ultimate  appeal  l)eing  given  to  the  .sovereign,  as 
the  head  of  the  military  jirofcssion  ;  and  unless  the  Army  is  to  degenerate  in  its  character, 
that  rule  must,  on  the  groiuids  of  public  policy,  be  strictly  adhered  to.  To  take  the 
Army  out  of  the  control  of  the  crown,  by  giving  jurisdiction  to  the  common-law  tribunals 
for  the  redress  of  professional  grievances,  would,  in  the  opinion  of  the  judges  them.selves, 
be  in  the  highest  degree  inexpedient,  and  hence  these  courts  h.-ive  uniformly,  and  espe- 
cially in  recent  instances,  declined  to  entertain  such  complaints."  II.  Clode,  Mil.  Forces, 
150;  Keightley  vs.  Bell,  4  Fos.  &  Fin.,  798.  Dawkins  vs.  Rokeby.  ibid.,  m?>  :  Freer 
vs.  Marshall,  ibid.,  485.  See.  also,  Wilkes  vs.  Dinsman,  7  How.,  89;  Smith  vs.  Whitney, 
116  U.  S.,  167  :  Wales  vs.  Whitney,  114  U.  S.,  564. 


400  MILITARY  LAW. 

In  this  form  it  was  re-enacted  in  the  Articles  of  1874.    The  procedure  under 
the  Article  has  already  been  explained.' 

Article  30.  A/n/  soldier  who  thinks  himself  luronged  by  any  officer  may 
complain  to  the  commanding  officer  of  his  regiment,  who  shall  summon  a 
regimental  court-martial  for  the  doing  of  justice  to  the  coinplainant .  Either 
party  may  appeal  from  such  regimental  court-martial  to  a  general  court- 
martial;  hut  if,  upon  such  second  hearing,  the  appeal  appears  to  he  gromd- 
less  and  vexatious,  the  party  appealing  shall  be  punished  at  the  discretion  of 
said  general  court-martial. 

A  right  similar  in  its  scope  and  operation  to  that  provided  by  this 
Article  for  the  redress  of  wrongs  in  behalf  of  enlisted  men  may  be  traced 
to  Article  62  of  the  Prince  Rupert  Code,  which  provided  that  "  all  con- 
troversies, either  between  Souldiers  and  their  Captains  or  other  Officers,  or 
between  Souldiers  and  Soiildiers,  relating  to  their  military  capacities,  shall 
be  summarily  heard  and  determined  at  the  next  court-martial  of  the  regi- 
ment." Article  69  of  the  same  code  contains  the  requirement  that  "  if  a 
Souldier  shall  be  wronged,  and  shall  not  appeal  to  the  Court,  but  take  his 
own  satisfaction  for  it,  he  shall  be  punished  by  the  Judgment  of  a  Court- 
Martial."  Article  2,  Section  12,  of  the  British  Code  of  1774  restricts  the 
Article  in  its  operation  to  the  case  of  an  "  inferior  officer  or  soldier  who 
shall  think  himself  wronged  by  his  Captain,  or  other  Officer  commanding 
the  Troop  or  Compauy  to  which  he  belongs,"  and  in  this  form  the  provision 
was  embodied  in  the  American  Articles  of  1776.  In  the  Articles  of  1806 
the  scope  of  the  remedial  provision  of  the  Article  was  extended  to  a  wrong 
done  to  an  inferior  officer  or  soldier  by  his  captain  or  any  other  officer.  The 
corresponding  Article  of  1874,  by  the  omission  of  the  words  "  his  captain  " 
from  the  Article  of  1806,  extends  the  remedy  to  a  wrong  done  to  an  enlisted 
man  by  any  commissioned  officer  of  the  Army.  The  successive  modifications 
in  verbiage  which  the  Article  has  undergone  have  not  operated,  however, 
to  extend  its  scope  in  respect  to  the  character  of  wrongs  to  which  it  is 
intended  to  provide  a  remedy;  the  wrongs  properly  subject  to  redress 
thereunder  being  those  of  a  fiscal  or  administrative  character,  and  not  such 
as  are  breaches  of  discipline  which  are  remediable  only  by  a  trial  before  an 
appropriate  military  tribunal.' 

This  Article  is  not  inconsistent  with  Article  83,  which  prohibits  regi- 
mental courts  from  trying  commissioned  officers,  It  does  not  contemplate 
or  provide  for  a  trial  of  an  officer  as  an  accused,  but  simply  an  investigation 
and  adjustment  of  some  matter  in  dispute — as,  for  example,  a  question  of 
accountability  for  public  property,  of  right  to  pay  or  to  an  allowance,  of 
relief  from  a  stoppage,  etc.  The  regimental  court  does  not  really  act  as  a 
court,  but  as  a  board,  and  the  "  appeal  "  authorized  is  practically  from  one 


See  the  chapter  entitled  The  Redress  of  Wkongs. 


THE  ARTICLES   OF    WMi.  4U1 

board  to  aiiotiier.  But  thougli  the  regimental  court  lias  no  power  to  find 
"  guilty  "  ur  "  not  guilty,"  or  to  sentence,  it  should  come  to  some  definite 
opinion  or  conclusion — one  sutticiently  specitic  to  allow  of  its  being  intelli- 
gently reviewed  by  the  general  court  if  desired.' 

There  are  two  manifest  and  unqualitied  limitations  to  the  province  of  the 
regimental  court  uiuler  this  Article,  viz, :  1.  It  cannot  usurp  the  place  of  a 
court  of  inquiry;  2.  It  can  take  no  cognizance  of  matters  which  it  would 
be  beyond  the  power  of  the  regimental  commander  to  redress.  When  the 
matter  is  beyond  the  reach  of  this  commander  it  is  beyond  the  jurisdiction 
of  this  court.  If  it  involve  a  question  of  irregular  details,  excessive  work  or 
duty,  wrongful  stoppages  of  pay,  or  the  like,  a  regimental  court  under  this 
Article  may  be  resorted  to  for  the  correction  of  the  wrong.  Otherwise  when 
the  ease  is  one  of  a  wrong  such  as  can  be  righted  only  by  Vhq  punishment  of 
the  officer." 

Aeticle  31.   Any  officer  or  soldier  who  lies  out  of  his  quarters,  garrison 
or  camp  icitJutut  leave  from  his  superior  officer  shall  be  punished  as  a  court- 
marfial  may  direct. 

Article  29  of  the  Prince  Ru{)ert  Code  contained  the  requirement  that 
*'  no  officer  shall  lye  out  all  night  from  the  Camp  or  Garrison,  without  his 
Superior  Officers  leave  obtained  for  the  same,  upon  pain  of  being  punished 
for  it  as  a  Court-Martial  shall  think  fit."  The  provision  appears  in  substan- 
tially its  present  form,  applying  to  enlisted  men  as  well  as  to  commissioned 
officers,  as  Article  2,  Section  14,  of  the  British  Codes  of  1765  and  1774,  as 
Article  2,  Section  13,  of  the  American  Articles  of  1776,  and  as  Xo.  42  of 
the  Articles  of  1806. 

This  Article,  although  it  creates  a  military  offense,  is  in  its  nature 
rather  a  police  regulation  than  a  criminal  statute,  and  is  calculated  to  secure 
the  constant  presence  and  readiness  for  duty  of  the  officers  and  enlisted  men 
composing  a  military  command.  Although  prosecutions  under  this  Article 
are  infrequent,  the  necessity  of  its  existence  is  evidenced  by  the  fact  that  it 

'  [>i!r.  J.  A.  Qcn..  35.  par.  1. 

'  IhiA..  36,  pjir  fi.  The  "  rcsrinu'iital  courf-martiul"  under  tlie  30th  Article  of  War 
cannot  he  iisod  as  a  suhstituto  for  a  srcncnil  courtniartial  or  court  of  inquiry,  for  it  can- 
not try  an  officer  nor  make  an  investisration  for  the  purpose  of  ileienniniiig  whether  he 
sh;\ll  be  hrouyht  to  trial.  When,  if  the  soldier's  complaint  should  he  sustained,  the 
only  redress  would  be  a  reprimand  fn  the  officer,  the  matter  would  not  he  within  the  iuris- 
dicfion  of  this  court.  It  can  only  investiirale  such  matters  as  are  susceptible  of  redress 
by  the  doinij  of  justice  to  the  complainant;  that  is,  when  in  some  way  he  cm  be  set  right 
by  putting  a  stop  to  the  wronsrfnl  condition  which  the  ofHcer  has  caused  to  exi.st  Erro- 
neous stoppages  of  pay,  irregulai'ity  of  detail,  the  apparent  requirement  of  more  labor 
than  from  other  soldiers,  and  the  like,  might  in  this  way  be  investigated  and  the  wrong- 
ful condition  put  an  end  to.  'I'he  court  will  in  such  cases  record  the  evidence  and  its 
conclusions  of  fiict.  and  recommend  the  action  to  be  taken.  The  members  of  the  court 
(and  the  judsrcadvocite)  will  be  swoin  faithfully  to  perform  their  duties  as  members  (ami 
judsre-advocate)  of  the  court,  and  the  pruceedings  will  be  recorded,  as  nearly  as  practi- 
cable, in  the  same  manner  as  the  proceedings  of  ordinary  courts-martial.  Mamial  for 
Courts-martial,  p.  89,  note. 


402  MILITAIiT  LAW. 

is  to  be  foniid  in  almost  every  military  code,  ancient  and  modern.'  It 
appears  as  the  first  clause  of  Article  29  of  the  Prince  Kupert  Code,  aa 
Article  2,  Section  14,  of  the  British  Code  of  1774,  as  Article  2,  Section  13, 
of  the  American  Articles  of  1776,  and  as  No.  42  of  the  Articles  of  1806. 

Article  32.  Any  soldier  -who  absoits  himself  from  Ms  troop,  battery, 
company,  or  detachment  without  leave  from  his  commanding  officer  shall  be 
pimished  as  a  court-mai-tial  may  direct."^ 

This  requirement  does  not  appear  as  such  in  the  Prince  Rupert  Code, 
although  certain  forms  of  unauthorized  absence,  especially  when  committed 
by  commissioned  officers,  are  there  made  punishable.  The  provision  appears 
as  Article  2,  Section  6,  of  the  British  Codes  of  1765  and  1774,  as  Article  2, 
Section  6,  of  the  American  Articles  of  1776,  and  as  No.  21  of  the  Articles 
of  1806.  In  the  codes  prior  to  that  of  1874  the  absence  contemplated  in  the 
Article  was  to  be  from  the  troop  or  company  of  the  soldier,  or  "  from  any 
detachment  with  which  he  maybe  commanded  ";  this  clause  was  omitted 
from  the  revision  of  the  Articles  in  1874. 

The  offense  of  unauthorized  absence  here  defined  closely  resembles  in 
its  essential  incidents  the  more  serious  offense  of  desertion,  from  which  it 
differs  only  in  respect  to  the  intent;  an  intent  not  to  return  giving  to  an 
unauthorized  absence  the  character  of  desertion,  while  the  absence  of  such 
an  intent  suffices  to  reduce  a  charge  of  desertion  to  the  minor  included 
offense  of  absence  without  leave.'  The  absence  of  an  enlisted  man  from  his 
troop,  battery,  company,  or  detachment,  no  matter  what  the  cause  or  dura- 
tion of  such  absence,  without  the  leave  of  his  commanding  officer  is,  and  is 
declared  by  this  Article  to  be,  a  punishable  offense.  To  constitute  the 
offense  of  absence  without  leave,  however,  no  specific  intent  is  necessary,  the 
essential  incidents   of  the  offense   being  set   forth   in   the   statute  which 

creates  it. 

Nothing  can  justify  the  absence  of  a  soldier  from  the  place  assigned  him 
but  the  leave  or  command  of  his  commanding  officer  specifically  or  generally 
given,  and  which  the  accused  in  all  cases  will  be  bounden  to  prove.  But 
circumstances  not  amounting  to  a  complete  justification  may  in  many 
instances  palliate  the  absence  of  the  party.  It  has  been  seen  that  an  absence, 
though  originally  authorized,  may,  if  unduly  prolonged,  acquire  the  char- 
acter of  an  unauthorized  absence;  yet  the  absentee  will  be  at  liberty  to 
account,  by  probable  circumstances,  for  the  excess  of  his  stay  beyond  the 
term  allowed  him;  as,  for  example,  that  it  was  caused  by  involuntary  deten- 
tion from  some  uncontrolhible  power,  or  by  inability  through  sickness,  veri- 
fied or  not,  as  the  case  may  be,  by  a  proper  medical  certificate,  or  by  an 
extension  of  the  furlough  by  competent  military  authority,  or  to  detention 
at  the  hands  of  the  civil  authority." 


'  Samuel,  .'544.  »  Dig.  .T.  A.  Gen..  ^45,  pjir.  18.  »  Samuel,  338. 


TUK  AHTICLES  OF   WAIi.  403 

Tlie  offense  of  absence  without  leave  may  be  committed  by  a  commis- 
sioned officer  as  well  as  by  an  enlisted  man;  in  the  former  case,  however,  it 
is  chargeable  under  the  <>2d  Article  of  War. 

Absence  without  leave  may  also  consist  in  an  act  of  omission  as  well  as 
in  one  of  commission.  Where  an  officer  detailed  to  command  an  escort  of 
prisoners  and  to  deliver  them  at  a  certain  place  neglected,  uj)ou  this  service 
being  performed,  to  return  with  reasonable  diligence  to  his  proper  station, 
held  that  he  was  chargeable  with  absence  without  leave,  it  being  the  duty  of 
an  officer  to  return  promptly  from  such  a  service  without  further  orders.' 

An  unauthorized  absence  from  quarters  only,  unaccomj)auied  with 
absence  from  the  post  or  company,  is  not  a  technical  absence  without  leave 
in  violation  of  this  Article,  but  an  offense  under  Article  (Ji." 

If,  on  returning  to  his  station  after  an  unauthorized  absence,  an  officer 
or  soldier  is  placed  upon  or  allowed  to  perform  full  dnty  by  his  proper 
commander,  such  action,  by  the  custom  of  the  service,  operates  in  general 
as  a  waiver  of  the  charge  of  absence  without  leave,  and  may  ordinarilv  be 
pleaded  as  a  good  defense  in  the  event  of  a  trial.' 

Stoppages,  etc. — An  enlisted  man  who  has  absented  himself  from  his  post 
or  company  without  authority  is  subjected  to  the  forfeiture  of  pay  and  allow- 
ances prescribed  by  the  Army  Regulations  *  although  not  brought  to  trial 
for  his  absence  as  an  offense.  The  forfeiture  is  a  stoppage  by  operation  of 
law  irrespective  of  any  punishment  that  may  be  imposed,  and  whether  anv 
be  imposed  or  not.  Thus  a  soldier  acquitted  under  a  charge  of  desertion  is 
acquitted  of  the  absence  without  leave  involved  in  the  charge,  and  cannot 
be  punished  therefor;  but  if  he  has  been  absent  without  leave  in  fact,  he 
incurs  the  forfeiture  specified  in  the  regulation.  And  a  soldier  brons^ht  to 
trial  for,  and  convicted  of,  an  absence  without  leave  is  subject  to  the  for- 
feiture, though  none  be  adjudged  in  the  sentence.  Otherwise,  however,  if 
the  findings  be  disapproved  as  not  sustained  by  the  testimony.^ 

Making  Good  Time  Lost. — Although,  for  the  reason  above  stated,  an 
enlisted  man  forfeits  all  pay  which  accrues  during  his  absence  without  leave, 
the  obligation  to  make  good  the  time  lost  is  not  a  statutory  consequence  of 
the  offense,  as  is  the  case  in  desertion.*     An  absentee  without  leave,  there- 

'  Dig  J.  A.  Gen.,  140,  par.  1.     See,  as  to  the  soiicral  rule  ou  this  subject,  G.  O    83 
Hdqrs.  of  Armv,  1866  ;  also  par.  54,  A.  R.  of  \m>. 
'  Jhid. ,  86. 
»  fbid..  140,  par.  2. 

*  Paragrai>li  138,  Army  Rfgulatioiis  of  1895. 

*  Dig.  J.  A.  Gen..  140,  par.  3.  Bui  ihe  stoppages  incurred  under  paragraphs  126 
and  I'll,  A.  H.  of  1895,  are  enforced  only  upon  a  conviction  by  court-martial! 

Tlie  forfeiture  specitiod  in  par.  lo3.  A.  H.  of  1895,  should  not  be  enforced  for 
a!)3ences  of  less  than  one  day.  but  tlie  soldier  sliould  be  left  to  be  punished  bv  sentence 
of  sununary  court.  Thus  where  the  unauthorized  absence  was  for  but  seven  "and  a  half 
liours.  a  forfeiture  of  a  day's  pay  would  deprive  the  soldier  of  pay  for  si.vteen  and  a  half 
hours  which  he  had  actually  earned.  Held,  therefore,  that  a  stoppage  of  one  day's  pay 
in  such  a  case  was  not  warranted.     Dig.  J.  A.  Gen.,  141,  par.  4. 

*  Ibid..  43,  par.  8. 


4:04  MILITARY  LAW. 

fore,  though  not  entitled  to  pay  during  his  unauthorized  absence,  will  only 
be  required  to  make  good  the  time  lost  upon  conviction  of  the  offense  before 
u  court-martial  of  competent  jurisdiction.' 

Absence  without  Leave  on  the  Part  of  Commissioned  Officers. — It  will 
be  observed  that  the  operation  of  the  Article  is  restricted,  by  its  express 
terms,  to  cases  of  unauthorized  absence  on  the  part  of  eidisted  men.  It  is 
none  the  less  an  offense  against  discipline  for  a  commissioned  officer  to  absent 
himself  witliout  the  specific  or  general  permission  of  his  commanding  officer. 
An  offense  of  unauthorized  absence  committed  by  a  commissioned  ofhcer 
would  be  chargeable  under  the  02d  Article  of  War,  and,  in  addition  to  the 
punishment  imposed  for  such  absence  by  sentence  of  the  court-martial,  an 
officer  so  offending  would,  by  the  operation  of  law,  be  required  to  "  forfeit 
all  pay  during  such  absence  unless  the  absence  be  excused  as  unavoidable." ' 

Article  33.  Any  office?'  or  soldier  who  fails,  except  ivhen  prevented  hy 
sickness  or  other  necessity,  to  repair  at  the  fixed  time  to  the  place  of  parade, 
exercise,,  or  other  rendezvous  appointed  hy  his  commanding  o-fficer,  or  goes 
from  the  same,  'without  leave  from  his  commanding  officer,  before  he  is  dis- 
missed or  relieved,  shall  be  punished  as  a  court-martial  may  direct.^ 

This  provision  appears  as  Article '4,  Section  14,  of  the  British  Code  of 
1774,  as  Article  4,  Section  13,  of  the  American  Articles  of  1776,  and  as 
Xo.  44  of  the  Articles  of  1806.  Absence  from  guard  without  leave  in  time 
of  war  w^as  reckoned  among  the  number  of  capital  offenses  in  the  war 
statutes  of  Henry  V.  In  the  statutes  of  Henry  VIII.  the  offense  is  treated 
with  some  abatement  of  the  rigor  of  the  preceding  ordinance,  though  seem- 
ingly with  severity,  the  offender's  body  being  thereby  made  liable  "  to  be 
imprisoned,  and  his  person  and  goods  to  stand  at  the  king's  pleasure."  ^ 
The  corresponding  provision  of  the  Prince  Rupert  Code,  from  which  the 
Article  in  its  present  form  is  derived,  contains  the  requirement  that  "  when 
■warning  is  given  for  setting  the  watch,  by  beat  of  drum  or  the  sound  of  the 
trumpet  or  fife,  if  any  Souldier  shall  absent  himself  without  reasonable 
cause,  he  shall  be  punished  by  riding  a  wooden  horse,  or  otherwise,  at  the 
discretion  of  the  Commander.  And  whatever  Souldier  shall  fail,  at  the 
beating  of  a  drum,  or  the  sound  of  a  trumpet  or  fife,  or  upon  an  alarm  given, 
to  repair  to  his  Colours,  with  his  arms  decently  kept  and  well  fix'd  (unless 
there  be  an  evident  necessity  to  hinder  him  from  the  same),  he  shall  either 
be  clap'd  in  Irons  for  it,  or  suffer  such  other  punishment  as  a  Court-Martial 
shall  think  fit."' 

Nature  of  the  Offense. — This  Article,  although  it  sets  forth  a  distinct 
military  offense  which  may  be  committed  by  any  officer  or  enlisted  man  who 
fails  to  conform  to  its  terms,  has  especial  application  to  the  case  of  a  com- 
mand which  is  provided  with  shelter,  generally  in  time  of  war,  by  quartering 

'  Paragraph  133.  Army  Regulations  of  1895.         *  Section  1365,  Revised  StatuteB. 
»  Samuel,  548.  *  See  page  572,  poit. 


THE  ARTICLES  OF    WAR.  4<»5 

its  members  upon  the  inhabitants  of  a  city  or  town.  As  the  troops  consti- 
tuting a  company  are  or  may  be  billeted  in  several  houses  or  buildings 
situated  at  some  little  distance  apart,  a  place  of  rendezvous  is  appointed,  and 
the  members  of  the  com])any  are  notified  of  the  location  of  the  same  at  the 
time  of  the  assignment  or  billeting.  At  all  formations  the  members  of  the 
command  are  required,  in  obedience  to  such  notification,  to  appear  at  the 
jilaee  of  rendezvous  thus  indicated,  and  a  failure  so  to  apjtear  after  due 
notification  will  constitute  an  offense  under  the  Article. 

As  the  troops  of  a  command  which  has  been  billeted  in  the  manner 
above  described  are  not  under  tlie  same  close  observation  and  control  as 
wlien  collected  in  camps  or  barracks,  it  is  also  an  offense  within  the  mean- 
ing of  the  Article  for  an  officer  or  enlisted  man,  having  appeared  at  the 
a])pointed  rendezvous,  to  leave  it  without  leave  from  his  commanding  officer. 

Article  34.  Any  soldier  trim  is  found  one  mile  from  camp  without 
leave  in  writing  from  his  commanding  officer  shall  he  punished  as  a  court- 
martial  may  direct. 

This  has  been  an  express  military  regulation  since  the  time  of  Charles  I., 
but  was  formerly  enforced  witli  a  much  heavier  punishment  than  at  jjresent; 
namely,  with  death.'  The  provision  can  be  traced  from  Article  19  of  the 
I'rince  Rupert  Code  through  Article  1,  Section  1-i,  of  the  British  Code  of 
1774,  and  Article  1,  Section  13,  of  the  American  Articles  of  1776,  to  No.  43 
of  the  Articles  of  1806,  which  was  re-enacted  without  change  in  the  Articles 
of  1874.  Under  the  peculiar  conditions  of  administration,  supply,  and  dis- 
cipline which  have  always  prevailed  in  the  English  military  service,  one  mile 
has  come  into  use  as  a  convenient  space  Avithin  the  circumference  of  which 
about  a  camp  are  usually  to  be  found  all  the  necessaries  with  which  a  soldier 
may  have  to  supply  himself.  On  some  occasions  within  the  last-mentioned 
reign  the  distance  was  narrowed  to  half  a  mile.'  But  though  this  is  the 
prescribed  limit  beyond  which  soldiers  cannot  pass  without  special  j)ermi6- 
sion,  it  does  not  follow  that  tliey  may  not  be  guilty  of  a  military  offense  in 
being  found  at  a  less  distance  from  the  camp  than  the  point  described  in  the 
Article;  since  it  is  clear  that  no  one  has  a  right  at  any  time  to  leave  his 
place,  or  the  ordinarily  fixed  bounds,  without  leave  from  his  officer.  But 
even  leave  from  an  officer  will  not  be  sufficient  to  save  the  party  from  the 
j)eril  of  this  Article,  unless  it  be  in  writing.' 

Akticle  35.  .1;^?/  soldier  who  fails  to  retire  to  his  quarters  or  tent  at  the 
beating  of  retreat  shall  be  punished  according  to  the  nature  of  his  offense. 

This  Article,  which,  like  the  31st,  partakes  of  the  character  of  a  police 
regulation,  appears  as  Article  3,  Section  14,  of  the  British  Code  of  IT 74,  as 
Article  7,  Section  13,  of  the  American  Articles  of  1776,  and  as  No.  35  of 
the  Articles  of  1806.     It  is  its  purpose  to  secure  the  regular  and  orderly 

'  Samuel,  542.  *Ibid.,MZ. 


406  MILITARY  LAW. 

retarn  of  enlisted  men  to  the  posts  or  places  which  they  are  to  occupy  for 
the  night,  with  a  view  of  keeping  the  forces  together  and  in  a  constant  state 
of  readiness  to  act  upon  an  occasion  of  emergency.' 

ARTICLE  36.  So  suUlier  belongifig  to  any  regiment,  troop,  battery,  or 
company  shall  hire  another  lo  do  his  duty  for  him,  or  be  excused  from  duty, 
except  in  cases  of  sickness,  disability,  or  leave  of  absence.  Every  such  soldier 
found  guilty  of  hiring  his  duty,  and  the  person  so  hired  to  do  another's  duty, 
shall  be  punished  as  a  court-martial  may  direct. 

Article  37.  Every  non-commissioned  officer  who  connives  at  such  hiring 
of  duty  shall  be  reduced.  Every  officer  ivho  knows  and  allows  such])ractices 
shall  be  punished  as  a  court-martial  may  direct. 

That  the  evil  for  which  the  above  Articles  were  intended  to  provide  a 
remedy  did  not  exist  in  the  last  half  of  the  seventeenth  century  is 
evidenced  by  the  fact  that  Article  50  of  the  Prince  Rupert  Code  expressly 
permits  the  duty  of  one  soldier  to  be  performed  by  another  in  "  case  of  sick- 
ness and  disability  or  other  necessary  cause,"  in  which  event  the  captain  is 
authorized  to  "  dispense  with  his  absence  without  causing  him  to  find 
another  to  serve  in  his  stead."  This  requirement  was  repeated  in  the 
Articles  issued  by  King  James  in  1672. 

The  Articles  above  cited  appear  in  their  present  form  as  Articles  7  and  8, 
Section  14,  of  the  British  Code  of  1774,  as  Articles  7  and  8,  Section  13,  of 
the  American  Articles  of  1776,  and  as  Nos.  47  and  48  of  the  Articles  of 
1806.  They  were  adopted  originally  with  a  view  to  put  an  end  to  a  practice 
whicli  prevailed  in  commands  stationed  in  the  vicinity  of  the  city  of  Loudon 
of  permitting  soldiers  to  engage  themselves  as  laborers  on  the  Thames  or 
in  the  yards  or  wharves  on  its  banks.  The  practice  seems  to  have  been 
approved  by  the  commanding  officers  of  the  troops,  who  received  a  percent- 
age of  the  absentee's  pay  for  services  rendered.  The  abuse  finally  became 
so  flagrant,  and  so  injurious  to  discipline,  as  to  cause  the  provisions  above 
cited  to  be  incorporated  in  the  Articles  of  War.' 

The  Articles  define  an  offense  of  hiring  duty,  which  may  be  committed 
by  the  enlisted  men  who  are  parties  to  the  contract  of  hiring  or  who  connive 
at  its  execution.  Its  subject-matter  being  prohibited  by  law,  the  contract 
itself  is  without  obligatory  force,  and  cannot,  for  that  reason,  be  made  the 
subject  of  an  action  at  law.  The  clause  of  the  statute  forbidding  enlisted 
men  to  be  excused  from  duty  "  except  in  cases  of  sickness,  disability,  or 
leave  of  absence  "  is  directory  in  character,  and  applies  to  the  officers  who, 
from  the  nature  of  their  office  or  employment,  are  authorized  by  law,  regu- 
lations, or   existing  orders  to  excuse  enlisted  men  from  the  performance  of 

military  duty. 

Article  38.  Any  officer  who  is  found  drunk  on  Ms  guard,  party,  or 
other  duty  shall  be  dismissed  from  the  service.     Any  soldier  ivho  so  offends 
1  Samuel,  545.  '  Ibid.,  549. 


THE  AUriCLES  OF   WAR.  407 

shall  suffer  such  punishment  as  a  court-martial  may  direct.  No  court- 
martial  shall  sentence  ani/  soldier  to  be  branded,  marked,  or  tattooed. 

This  appears  as  Article  5,  Section  14,  of  tlie  Briti.sli  Code  of  17 74,  as 
Article  5,  Section  13,  of  tlie  American  Articles  of  177G,  and  as  No.  45  of  the 
Articles  of  1806.  The  Articles  of  1774,  1770,  and  1800  contained  a  provi- 
sion that  the  sentence  imposed  upon  an  enlisted  man  for  the  offense  of 
drunkenness  on  duty  sliould  consist  of  "  corporal  "  punishment.  Although 
the  most  usual  form  of  corporal  punishment,  that  of  Hogging,  had  been 
abolished  by  the  Act  of  August  5,  1801,'  the  word  "  corporal  "  appeared  in 
the  revision  of  the  Articles  in  1874,  and  was  held  to  apply  to  any  form  of 
punishment  authorized  by  custom  of  service  which  involved  personal 
restraint,  hardship,  or  inconvenience,  as  distinguished  from  a  merely 
pecuniary  penalty,  in  the  nature  of  a  fine  or  forfeiture  of  pay.  By  subse- 
quent enactments,'  however,  the  word  "  corporal  "  was  stricken  from  the 
Article,  and  a  new  and  additional  restriction  imposed  in  the  form  of  a 
requirement  that  "  no  court-martial  shall  sentence  any  soldier  to  be 
branded,  marked,  or  tattooed." 

Meaning  of  Term  Duty. — The  penalties  declared  by  the  Article  attach 
not  to  drunkenness  7>e/"  se,  but  as  it  may  be  connected  with  the  discharge  of 
some  important  duty,  for  the  due  execution  of  which  it  is  supposed  to  render 
the  party  affected  by  it  not  only  unfit  but  a  dangerous  instrument  to  all 
around  him.'  In  the  American  Articles  of  1776,  and  in  the  British  Code 
from  which  they  were  derived,  the  offense  consisted  in  being  found  drunk 
on  "  a  guard,  party,  or  other  duty  under  aryns.''''  Although  the  words 
"  under  arms"  were  omitted  from  the  revision  of  the  Articles  in  1806,  no 
change  was  made  by  courts-martial  in  their  application  of  the  statute  to  cases 
referred  to  them  for  trial  until  1853,  when,  in  the  case  of  a  commissioned 
officer  tried  for  a  violation  of  this  Article  and  found  "  not  guilty,"  but 
"  guilty  of  being  drunk  in  the  actual  execution  of  his  office,"  it  was  decided 
by  the  Secretary  of  AVar  that  the  effect  of  the  omission  of  the  words  "  under 
arms  "  in  the  revision  of  1806  had  been  to  remove  one  statutory  restriction 
from  the  operation  of  the  Article  without  introducing  a  new  one,  and  that 
the  terms  of  the  Article  applied  to  all  occasions  of  duty,  and  was  not  limited 
to  duties  performed  by  the  roster,  or  by  detail,  but.  was  applicable  not  only 
to  occasions  of  duty  in  which  the  entire  command  participated,  but  to  the 
case  of  guards,  parties,  and  the  like,  composed  of  details  from  the  several 
units  of  which  the  command  was  composed. 

'  12  Statutes  at  Large.  317. 

»  Acts  of  February  18.  1875.  (18  Stat,  at  Large.  318.)  February  27,  1877,(19  ibid., 
244,)  and  June  6.  1872,  (sec.  2,)  (17  iiid.,  261).  The  euactmentlast  cited  formally  amended 
Article  45  of  the  Code  of  1806,  and  the  insertion  of  the  word  "  corporal  "  in  the  revision 
of  1874  was  for  that  reason  erroneous 

*  Samuel,  551.  Note  tlie  emphatic  order  of  the  President  in  regard  to  violations  of 
this  Article  published  in  G.  O.  104,  Hdqrs.  of  Army,  1877. 


408  MILITARY  LAW. 

On  Duty  ;  Off  Duty. — The  words  "  on  duty,"  as  used  in  the  32d  Article, 
have  also  received  an  authoritative  interpretation.  As  applied  to  the  com- 
manding officer  of  a  post,  or  of  an  organization,  or  detachment  in  the  field, 
the  senior  officer  present,  in  the  actual  exercise  of  command,  is  constantly 
on  duty;'  the  term  being  here  used  in  contradistinction  to  "  on  leave."  In 
the  case  of  other  officers,  or  of  enlisted  men,  the  term  "  on  duty  "  lias  been 
held  to  relate  to  the  performance  of  duties  of  routine  or  detail,  in  garrison 
or  in  the  field;  the  words  "  otf  duty,"  in  respect  to  such  persons,  relating 
to  such  periods  or  occasions  when,  no  duty  being  required  of  them  by  orders 
or  regulations,  officers  and  men  are  said  to  occupy  that  status  of  leisure 
known  to  the  service  as  being  "  olf  duty."  "^ 

Nature  of  Intoxicant. — It  is  immaterial  whether  the  drunkenness  be 
voluntarily  induced  by  spirituous  liquor  or  by  opium  or  other  intoxicating 
drug;  in  either  case  the  offense  may  be  equally  complete.' 

The  drunkenness  need  not  be  such  as  totally  to  incapacitate  the  party  for 
the  duty;  it  is  sufficient  if  it  be  such  as  materially  to  impair  the  full  and  free 
use  of  his  mental  or  physical  abilities."  It  is  not  a  sufficient  defense  to  a 
charge  of  drunkenness  on  duty  to  show  that  the  accused,  though  under  the 
influence  of  liquor,  contrived  to  get  through  and  somehow  perform  the  duty/ 

Drunkenness  as  an  Offense. — Drunkenness  not  on  duty,  or  when  off  duty, 
when  amounting  to  a  "  disorder,"  should  be  charged  under  Article  G2, 
unless  (in  a  case  of  an  officer)  committed  under  such  circumstances  as  to 
constitute  an  offense  under  Article  61."     So,  too,  an  officer  or  enlisted  man 

'  A  post  commander,  while  present  and  exercising  command  as  such,  is  deemed  to 
be  at  all  times  on  duly  in  the  sense  of  this  Article,  and  thus  liable  to  a  charge  under  the 
same  if  he  become  drunk  at  the  post.     Dig.  J.  A.  Gen.,  37,  par.  5. 

A  medical  otiicer  of  a  post,  where  there  are  constantly  sick  persons  under  his  charge 
who  may  at  any  moment  require  his  attendance,  may,  generally  speaking,  be  deemed  to 
be  "  on  duty,"  in  the  sense  of  tlie  Article,  during  the  whole,  day,  and  not  merely  during 
the  hours  regularly  occupied  by  sick-call,  visiting  the  sick,  or  attending  hospital.  If 
found  drunk  at  any  other  hour,  he  may  in  general  be  charged  with  an  offense  under  this 
Article.     IMd.,  par.  6. 

'■*  Tiiat  the  Article  is  not  limited  in  its  application  to  mere  duties  of  detail,  but  em- 
braces all  descriptions  and  occasions  of  duty,  see  the  interpretation  of  the  same  as 
declared  in  G.  O.  7,  War  Dept.,  1856,  and  atfirmed  in  G.  O.  5,  id.,  1857.  The  case  in 
the  latter  order,  indeed,  was  a  case  of  drunkenness  while  on  duty  as  a  post  commander. 
See  another  case  of  the  same  character  in  G.  C.  M.  O.  21 ,  Dept.  of  the  Missouri,  1870,  and 
the  remarks  of  Maj.-Gen.  Schofield  thereon,  and  compare  G.  C.  M.  O.  9,  War  Dept., 
1875.     IhuL,  par.  5,  note. 

■'  Dig.  J.  A.  Gen.,  88,  par.  8.  See,  also,  Simmons,  §  157 ;  Hough,  Precedents,  208  ; 
James,  Precedents,  60. 

*SoeG.  C.  M.  O.  '6-i,  War  Dept.,  1875;  aLso  do.  21,  Dept.  of  the  Missouri,  1870;  G. 
O.  53,  98,  Armvof  the  Potomac,  1862;  do.  48,  Dept.  of  Va.  &  No.  Ca.,  1864;  do.  33, 
Dept.  of  the  Platte,  1871. 

^  Dig.  J.  A.  Gen.,  38,  par.  7.  A  finding,  under  a  charge  of  a  violation  of  this  Article, 
of  not  guilty  of  being  "found  drunk,"  but  guilty  of  being  "  found  under  tlie  influence 
of  liquor"  (or  by  which  the  latter  words  ?iVQ  substituted  in  the  specification  for  the  former) 
recommended  to  be  disapproved  as  making  a  distinction  too  fine  for  a  practical  adminis- 
tration of  justice,  and  establishing  a  precedent  which  must  tend  to  defeat  the  purpose 
of  the  Article.*    Ibid. 

•  Ibid.,  par.  9.  An  officer  reporting  in  person  drunk  upon  his  arrival  at  a  post,  to 
the  commander  of  which  he  had  been  ordered  to  report,  held  chargeable  under  this 

*  Compare  G.  C.  M.  O.  .3-3,  War  Department,  1873. 


THE  ARTICLES  OF   WAR.  409 

who  appears  at  a  formation  for  duty  so  much  under  the  influence  of  liquor 
as  to  be  incapable  of  its  due  and  proper  performance,  and  is  thereby  pre- 
vented from  entering  upon  the  particular  duty  in  question,  is  pro2)erly 
cliargeable  with  an  otTense  under  the  02d  Article.' 

While  it  is,  in  itself,  an  offense  knowingly  to  allow  an  officer  or  soldier 
to  go  on  duty  when  under  the  influence  of  intoxicating  liquor,  yet  if  he  is 
placed  on  duty  while  i)urtially  under  this  influence,  but  without  the  fact 
being  detected,  and  his  drunkenness  continues  and  is  discovered  while  he 
remains  upon  tlie  duty,  he  is  strictly  amenable  under  this  Article,  which 
prescribes,  not  that  the  party  shall  become  drunk,  but  that  he  shall  be 
^^fo/oid  drunk  "  on  duty." 

Punishment. — -No  punishment  except  dismissal  can  legally  be  imposed 
upon  an  officer  on  a  conviction  of  the  otfeuse  made  punishable  by  this 
Article.  A  sentence  imposing,  with  dismissal,  any  further  punishment,  as 
imprisonment  or  forfeiture  of  pay,  is,  as  to  such  additional  penalty,  unautho- 
rized and  inoperative,  and  should  so  far  be  disapproved.' 

Since  the  provision  requiring  corporal  punishment  to  be  imposed  upon 
enlisted  men  for  violations  of  this  Article  have  been  abolished  by  statute, 
sentences  in  such  cases  have  been  discretionary  with  the  court,  subject,  how- 
ever, to  the  requirements  of  the  President's  order  establishing  limits  of 
punishment  for  enlisted  men  of  the  Army. 

Article  39.  Any  sentinel  who  is  found  sleeping  upon  his  post,  or  who 
leaves  it  before  he  is  regularly  relieved,  shall  suffer  death,  or  such  other 
punishment  as  a  court-martial  may  direct. 

Article  34:  of  the  Prince  Rupert  Code  contained  the  following  require- 
ment: "A  Centinel  who  is  found  sleeping  in  any  Post,  Garrison,  Trench, 
or  the  like  (while  he  should  be  upon  his  duty)  shall  suffer  death,  or  such 
other  punishment  as  Our  General  Court-Martial  shall,  by  their  sentence, 
inflict  for  the  same."  "  Aiul  if  a  Centinel  or  Perdue  shall  forsake  his  place, 
before  he  be  relieved  or  drawn  off,  or  upon  discovery  of  an  Enemy  shall  not 
give  warning  to  his  quarters  according  to  direction,  he  shall  suffer  death,  or 
such  other  punishment  as  Our  General  Court-Martial  shall  think  fit."    This 

Article.  And  so  held  of  an  officer  leportinij  when  drunk  to  the  post  commander  for 
orders  as  officer  of  the  day,  after  having  been  duly  detailed  as  such.  Dig.  .1.  A.  Gen., 
37.  par.  3. 

liut  where  an  officer,  after  being  specially  ordered  to  remain  with  his  companv, 
absented  himself  fmm  it  and  from  ids  duty,  and  while  thus  absent  became  and  was 
fouml  diunk,  held  that  he  was  not  strictly  chargeable  with  drunkenness  on  dutv  under 
this  Article,  but  was  properly  chargeable  with  disobedience  of  orders  and  unauthorized 
absence,  aggravated  by  drunkenness.     Ibid  ,  par.  4. 

'  A  charge  of  drunkenness  on  duty  (drill)  held  not  sustained  where  the  parfv  was 
found  drunk,  not  at  or  during  the  drill,  but  at  the  hour  appointed  for  the  drill,  which, 
however,  by  reason  of  his  drunUeiniess,  he  did  not  enter  upon  or  attend.  The  charge 
should  properly  iiave  been  laid  imder  Article  62.     Ibid.,  37,  par.  2. 

*  Dig.  J.  A.  Gen..  36.  par.  1.  Ilrld  that  a  soldier  found  drunk  when  on  dutv  was 
properly  convicted  uiuler  this  Article,  though  his  drunkenness  actuailv  commenced 
before  he  went  on  the  duty;  his  condition  not  being  perceived  till  some  time  after  he 
had  entered  upon  the  same.     Ibid. 

'  Ibid.,  38.  par.  10. 


410  MILITARY  LAW. 

provision,  which  was  repeated  in  the  32d  of  the  King  James  Articles  of  1686, 
appears  in  its  present  form  as  Article  6,  Section  14,  of  the  British  Code  of 
1774,  as  Article  6,  Section  13,  of  the  American  Articles  of  1776,  and  as 
No.  46  of  the  Articles  of  1806. 

"  The  safety  of  an  army  always  depends  upon  the  due  vigilance  of  senti- 
nels, who  are  required  to  watch  that  others  may  sleep,  whereby  the  camp 
may  be  seasonably  refreshed  from  the  daily  labors  of  the  field.  But  the 
requisite  rest  for  this  salutary  purpose  could  not  be  freely  enjoyed  unless 
there  should  be  a  perfect  confidence  in  the  watchfulness  of  those  who  are 
assigned  as  the  guardians  of  the  repose  and  quiet  of  the  camp.  Hence 
penalties  of  the  heaviest  kind  have  been  resorted  to  for  punishing  negli- 
gences and  the  more  active  faults  that  have  the  tendencv  to  lessen  the 
assurance  that  ought  to  be  felt  in  the  fidelity  of  sentinels.  When  it  is  con- 
sidered what  important  interests  are  committed  in  time  of  hostilities  to 
their  charge,  and  how  these  may  be  injured  or  affected  by  willful  absence  or 
inattention,  it  is  not  unnatural  that  these  crimes  should  have  been,  in  all 
ages  and  in  almost  all  countries,  regarded  as  capital  offenses."  '  They  have 
been  so  regarded  by  our  own  Articles  and  by  those  prevailing  in  the  British 
service  from  which  our  own  were  derived. 

To  prevent  soldiers  when  performing  the  duty  of  sentinels  from  falling 
into  indulgences  that  might  dispose  them  to  or  surprise  them  into  sleep,  it 
was  a  part  of  the  older  military  regulations  that  soldiers  should  not  sit  down 
npon  their  watch,  upon  pain  of  imprisonment.  The  Romans  had  a  rule  to 
the  same  effect,  ordering  that  soldiers  should  stand  or  walk  during  the  con- 
tinuance of  their  duty;  and  modern  generals  have  enjoined  a  similar  practice 
to  be  observed  in  the  armies  which  they  have  commanded." 

It  is  no  defense  to  a  charge  of  "  sleeping  on  post"  that  the  accused  had 
been  previously  overtasked  by  excessive  guard-duty; '  or  that  an  imperfect 
discipline  prevailed  in  the  command  and  similar  offenses  had  been  allowed  to 
pass  without  notice;*  or  that  the  accused  was  irregularly  or  informally  posted 
as  a  sentinel.'  Evidence  of  such  circumstances,  however,  may  in  general  be 
received  in  extenuation  of  the  offense,  or,  after  sentence,  may  form  the  basis 
for  a  mitigation  or  partial  remission  of  the  punishment.'  An  officer  who 
places  or  continues  a  soldier  on  duty  as  a  sentinel  when,  from  excessive 
fatigue,  infirmity,  or  other  disability,  he  is  incompetent  to  perform  the  im- 
portant duties  of  such  a  position  will  ordinarily  render  himself  liable  to 
charges.' 


•Samuel,  557.  ^  J  bid..  558. 

'  See  G.  O.  74.  Army  of  the  Potomac.  1862;  also  G.  O.  cited  in  note  5,  post, 

*  G.  O.  74,  Army  of  the  Potomac,  1863. 

»  G.  O.  10,  Middle  Mil.  Dept.,  1865;  do.  166,  Dept.  of  the  South,  1864. 

•  See  G  O.  10,  63,  Dept.  of  Va.  ife  No.  Ca.,  1863;  do.  2,  Northern  Dept.,  1865;  do. 
67,  Dept.  of  Washington,  1866;  do.  9,  Dept.  of  the  South,  1870;  G.  C.  M.  O.  44,  Dept. 
of  Texas,  1875. 

"<  Dig.  J.  A.  Gen.,  39.     See  G.  O.  15,  Army  of  the  Potomac,  1861;  do.  62,  Dept.  of 


TllK  AHTICLES  OF    WAH.  411 

Respect  for  Sentinels.— Respect  for  the  person  and  ofhce  of  a  jentinel  ie 
as  strictly  enjoined  by  military  law  as  that  required  to  be  paid  tu  an  officer.' 
As  it  is  expressed  in  the  (luard  Kegulations,  "  all  ])ersons  of  whatever  rank 
in  the  service  are  required  to  observe  respect  toward  sentinels."'  Invested 
as  the  private  soldier  frequently  is,  while  on  liis  post,  with  a  grave  resjionsi- 
bility,  it  is  ])roper  that  he  should  be  fully  protected  in  the  discliarge  of  his 
duty.  To  permit  any  one,  of  whatever  rank,  to  molest  or  interfere  with 
him  wliile  thus  employed,  without  becoming  liable  to  a  severe  penalty,  would 
obviously  establish  a  precedent  highly  prejudicial   to  the   interests  of   the 


service.' 


Duty  of  Sentinels. — A  sentinel,  in  respect  to  the  duties  with  wliich  he  is 
charged,  represents  the  su])erior  military  authority  of  the  command  to  wliich 
he  belongs,*  and  whose  orders  he  is  required  to  enforce  on  or  in  the  vicinity 
of  his  i)0st.  As  such  he  is  entitled  to  the  respect  and  obedience  of  all  persona 
who  come  within  the  scope  of  operation  of  the  orders  which  lie  is  required  to 
carry  into  effect. 

Over  military  persons  the  authority  of  the  sentinel  is  absolute,  and  dis- 
obedience of  his  orders  on  the  part  of  such  persons  constitutes  a  most 
serious  military  offense,  and,  being  prejudicial  in  the  highest  degree  to  the 
interests  of  discipline,  is  punishable  under  the  fJ^Jd  Article  of  AVar.'  Over 
prisoners  committed  to  his  charge  the  authority  of  the  sentinel  is  derived  in 
part  from  analogy  to  the  function  of  the  jailer  at  common  law,  and  in  part 
from  the  laws,  regulations,  and  customs  of  service  which  create  and  regulate 
the  duties  and  responsibilities  of  sentinels  in  charge  of  prisoners.  If,  there- 
fore, a  prisoner  in  his  custody  attempts  to  escape,  it  is  the  duty  of  the 
sentinel  to  use  his  utmost  endeavor  to  prevent  such  escape,  and  he  may  not 
only  use  force  for  that  purpose,  but  may  resort  to  every  means  in  his  power 

Va.  &  No.  Ca..  1863  ;  G.  C.  M.  O.  59,  Dept.  of  Texas,  1872;  do.  80,  Dept.  of  the  Mis- 
souri, 1875;  Dig   J.  A.  Gen.,  39. 

'  Dig.  J.  A.  Gen.,  703. 

3  Paragnijili  313.  Manual  of  Guard  Duty. 

*  Dig.  J.  A.  Gen.,  703  So  wliere,  in  time  of  war,  a  lieutenant  ordered  a  soldier  of 
his  regiment  who  liad  been  phiced  on  duty  as  a  sentry  by  superior  authority  to  feed 
and  take  care  of  his  horse,  and.  upon  the  latter  respectfully  declining  to  leave  his  post 
for  tlie  purpose,  assailed  him  with  abusive  Lingnage,  held  that  a  sentence  of  dismissal 
imposed  by  a  court-martial  upon  such  officer,  on  his  conviction  of  this  offense,  was  fully 
justified  by  the  requirements  of  military  discipline.     Ibid. 

*  "  I  consider  a  sentry,"  wrote  the  Duke  of  Wellington,  "as  a  depository  <.f  the 
public  authority  at  his  station,  and  that  all  men,  however  high  their  rank,  are  bound  to 
obey  the  orders  he  has  to  give  them."     ("lode,  Mil.  Law,  98. 

'Over  persons  subject  to  the  Mutiny  Act  the  sentry  or  guard  must  exercise  that 
control  which  his  own  duty  untler  the  Articles  requires  from  him  and  would  justify,  as 
every  sentinel  is  posted  in  tl)e  camp  or  garri.son  with  definite  orders,  which  proceed 
from  the  hisrhest  military  authority  therein.  These  are  assumed  to  be  lawful  oiders, 
within  the  meaning  of  tlu'  38th  Article  of  War.  and  are  binding  upon  all  within  the 
camp  or  garrison,  and  tiierefore  are  such  as  the  seiUry  is  bound  to  enforce.  Disobe- 
dience either  in  the  sentry  or  other  such  offender  would  subject  both  to  punishment. 
If,  tiierefore,  any  person  "subject  to  the  Articles  of  War  disobeys  these  orders,  the  sentry, 
or  rather  the  otlicer  of  tlie  guard  upon  the  warning  of  the  sentry,  has  authority  to  place 
the  offender  in  confinement.     II.  C'lode,  Mil    Forces,  474. 


412  MILITARY  LAW. 

to  frustrate  such  attempt.  It  is  his  duty  first,  however,  to  call  upon  the 
prisoner  to  halt,  and  in  the  use  of  force  he  is  governed  by  the  same  restric- 
tions which  apply  to  officers  of  the  law  in  a  similar  case.' 

'  The  c-ase  of  the  United  States  against  Clark  (31  Fed.  Rep.,  710)  is  pertinent  as 
bearing  upon  the  point  under  discussion.  One  Stone,  a  private  soldier  in  the  Army,  had 
been  tried  by  a  general  court-martial  and  sentenced  to  dishonorable  discharge,  and  to 
conljnementin  the  military  prison  for  two  years,  and  at  the  time  of  the  occurrence  was 
confined  in  the  post  guard-house  at  Fort  Wayne,  Michigan,  awaiting  execution  of 
sentence.  He  attempted  to  escape  from  the  guard  at  the  formation  at  retreat,  and  was 
tired  upon  by  the  sergeaut  of  the  guard,  Clark,  with  a  view  to  prevent  his  escape,  but 
received  a  mortal  wound  from  the  results  of  which  he  died  the  same  evening.  The 
case  was  heard  by  Judge  Brown  of  the  United  Stales  Circuit  Court,  sitting  as  a  com- 
mitlins  magistrate.  The  case  reduced  itself  to  the  naked  legal  proposition  as  to  whether 
the  prisoner,  Clark,  was  excused  in  law  in  killing  the  deceased. 

Stone's  ■'  crime  was  one  unknown  to  the  common  law,  and  the  technical  definitions  of 
that  law  are  manifestly  inappropriate  to  cases  which  are  not  contemplated  in  the  dis- 
cussion of  common-law  writers  upon  the  subject.  We  are  bound  to  take  a  broader  view, 
and  to  measure  the  rights  and  liabilities  of  the  prisoner  by  the  exigencies  of  the  military 
service  and  the  circumstances  of  the  particular  case.  It  would  be  particularly  unwise 
for  the  civil  courts  to  lay  down  general  principles  of  law  which  would  tend  to  impair  the 
efticiency  of  the  military  arm,  or  which  would  seem  to  justify  or  condone  conduct 
prejudicial  to  good  order  and  military  discipline.  An  army  is  a  necessity — perhaps  I 
ought  to  say  an  unfortunate  necessity— under  every  system  of  government,  and  no 
civili/.eil  Slate  in  modern  times  lias  been  able  to  dispense  with  one.  To  insure  efficiency 
an  army  must  be,  to  a  certain  extent,  a  despotism:  each  officer,  from  the  general  to  the 
corporal,  is  invested  with  an  arbitrary  power  over  those  beneath  him,  and  the  soldier 
who  enlists  in  the  army  waives,  in  some  particulars,  his  rights  as  a  civilian,  surrenders 
his  personal  liberty  during  the  term  of  his  enlistment,  and  consents  to  come  and  go  at 
the  will  of  his  superior  officers.  He  agrees  to  become  amenable  to  the  military  courts, 
to  be  disciplined  for  offenses  unknown  to  the  civil  law,  to  reliiicpiish  his  right  to  trial  by 
jury,  and  to  receive  punishments  which  to  the  civilian  seem  out  of  all  proportion  to 
the  magnitude  of  the  offense." 

'■  While  the  punishment  in  Stone's  case  seems  to  the  civilian  quite  disproportionate 
to  the  character  of  his  offense  as  charged  in  the  specification,  which  was  no  more  than 
the  utterance  of  a  mallei. )Us  falsehood  when  gauged  by  the  penalties  attached  by  Con- 
gress to  the  several  offenses  contained  in  the  Articles  of  War,  it  does  not  seem  so  exces- 
sive: at  any  rate  it  was  the  lawful  judgment  of  a  court  having  jurisdicticjn  of  his  case, 
and  it  was  his  duly  to  abide  by  it,  or  pursue  his  remedy  in  the  method  provided  by  law. 
In  seeking  to  escape,  the  deceased  was  undoubtedly  guilty  of  other  conduct  prejudicial 
to  good  order  and  military  discipline,  aiul  was  liable  to  such  further  punishment  as  a 
court-marlial  might  inflict.  In  suffering  him  to  escape,  ihe  prisoner  became  liable  to 
Article  69,  and,  failing  to  use  his  utmost  endeavor  to  prevent  it,  was  himself  subject  to 
sucii  punishment  as  a  couri-martial  might  direct.  Did  he  exceed  his  authority  in  using 
his  musket':"' 

The  defense  liaving  urged  that  the  finding  of  a  court  of  inquiry,  which  had  investi- 
gated the  case  of  Sergeant  Clark  and  exonerated  him  from  blame  on  the  ground  that 
the  shooting  was  done  in  the  performance  of  military  duty,  was  a  complete  bar  to  a 
prosi'culion,  it  was  held  by  the  court  that  such  finding  constiiuted  no  bar  to  a  civil  pros- 
ecution. The  court  then  went  on  to  .«ay:  "At  the  same  time,  I  think  that  weight  should 
be  given,  and  in  a  case  of  this  kind  great  weight,  to  the  finding,  as  an  expression  of  the 
opinion  of  the  military  court  of  the  magnitude  of  Stone's  offense,  and  of  the  necessity 
of  using  a  musket  to  prevent  his  escape.  I  am  the  more  iinpreissed  with  this  view  from 
the  diflSculty  of  applying  common-law  principles  to  a  case  of  this  description.  There  is 
a  singular  and  almost  total  absence  of  autiiority  upon  the  subject  of  the  power  of  a 
military  guard  in  time  of  peace.  But,  considering  the  nature  of  military  government, 
and  tiie  nece.ssity  of  maintaining  good  order  and  discipline  in  a  camp,  I  should  be  loath 
to  sav  that  life  might  not  be  taken  in  suppressing  conduct  prejudicial  to  such  disci- 
pline'" 

After  citing  the  cases  of  McCall  vh.  McDowell  (1  Abb.  212,  218),  U.  S.  vs.  Carr  (1 
Woods,  484). "Wilkes  ^•«  Dinsman  (7  How.,  89),  the  case  of  Itiggsw.  State  (3  Cold., 
8.5)  was  referred  to.  "  Riggs  was  a  j)rivate  s(ddier  who  had  been  convicted  of  murder 
in  killing  a  man  while  acting  under  the  orders  of  his  superior  officer.     The  court  held 


TUE  ARTICLES  OF   WAR.  4:13 

In  respect  to  persons  not  subject  to  military  law  the  powers  and  duties 
of  sentinels  are  less  clear.  In  the  execution  of  the  orders  with  which  he  is 
charged  by  superior  authority  he  is  entitled  to  the  respect  and  obedience  of 
all  persons  wiiliiii  the  scope  of  operation  of  the  orders  which  he  has  received. 
In  the  enforcement  of  such  orders  he  is  or  may  be  compelled  to  resort  to 
forcible  measures:  first,  to  prevent  ingress  or  trespass,  in  which  case  he  is 
clearly  entitled  to  use  the  same  amount  of  force  that  a  private  person  would 
be  authorized  to  use  in  resisting  a  trespass,  or  in  the  defense  of  his  property 
from  violent  entry;  second,  in  the  strict  performance  of  his  duty  he  may 
be  assaulted,  or  opposed  in  the  proper  execution  of  his  orders;  in  such  case 
he  may  overcome  such  resistance  by  the  use  of  so  much  force  as  is  necessary 
for  that  purpose,  and  no  more.  Under  the  same  limitations  as  to  the  kind 
and  amount  of  force  used,  a  sentinel  may  oppose  or  resist  the  escape  of  a 
prisoner  who  has  been  committed  to  his  charge.' 

Article  40.  Aity  officer  or  soldier  who  quits  his  guard,  platoon,  or 
division  without  leave  from  his  superior  officer,  except  in  a  case  of  urgent 
necessity,  shall  be  jjunished  as  a  court-martial  may  direct. 

that  an  order  illegal  iu  itself,  luul  not  jusiifiiible  by  the  rules  and  usages  of  war,  so  that 
n  muii  of  ordinary  sense  iiud  uuderstunding  would  know,  when  he  heard  it  read  and 
given,  that  the  order  was  illegal,  would  alTord  the  private  no  protection  for  a  crime 
under  such  order  ;  but  that  an  order  given  by  an  olhcer  to  his  private  wiiich  does  not 
expressly  and  clearly  show  on  its  face,  or  the  body  thereof,  its  own  illegality  the  soldier 
would  be  bound  to  obey,  and  such  order  would  be  a  protection  to  him.  I  have  no 
doubt  that  the  same  principle  would  apply  to  the  acts  of  a  subordinate  officer  per- 
formed in  compliance  with  his  supjiosed  duty  as  a  soldier  ;  and  unless  the  act  were 
manifestly  beyontl  the  scope  of  his  authority,  or,  in  the  words  >ised  in  the  above  case, 
were  such  that  a  man  of  ordinary  sense  and  understanding  would  know  that  it  was 
illegal,  that  it  would  be  a  protection  to  him  if  he  acted  in  good  faith  and  without 
malice.  As  there  is  no  reason  to  suppose  that  Clark  was  not  doing  what  he  conceived 
was  his  duty,  and  the  act  was  not  so  clearly  illegal  that  a  reasonable  man  might  not 
suppose  it  to  be  legal— indeed  I  incline  to  the  opinion  that  it  was  legal, — and  as  there 
was  an  entire  absence  of  malice,  I  think  he  ought  to  be  discharged." 

But  even  if  this  case  were  decided  upon  common-law  ininciples  the  result  would  not 
be  different.  By  the  statutes  of  the  State  iu  which  the  homicide  was  committed,  a 
felony  is  defined  to  be  any  crime  punishable  by  imprisonment  in  the  state  prison.  Stone 
had  been  convicted  of  a  military  offense,  and  sentenced  to  hard  labor  in  the  military 
prison  for  two  years,  and,  so  far  as  the  analogies  of  the  common  law  are  applicable  at  all, 
he  must  be  considered,  in  a  case  of  this  kind,  as  having  been  convicted  of  felony. 

"  It  may  be  .<?aid  that  it  is  a  question  for  a  jury  in  each  case  whether  the  prisoner  was 
justified  by  the  circumstances  in  making  use  of  his  musket;  and  if  this  were  a  jury  trial, 
I  should  submit  that  question  to  them:"but  as  I  am  bound  to  find  as  a  matter  of  fact 
that  there  is  reasonable  cause  to  believe  the  defendant  guilty  not  merely  of  a  homicide, 
but  of  a  felonious  homicide,  and  as  I  would,  acting  in  another  capacity,  set  aside  a  con- 
viction if  a  verdict  of  guilty  were  rendered,  I  shall  assume  the  responsibility  of  directing 
his  discharge."     U.  S.  vs.  Clark,  31,  Fed   Rep,,  710. 

'  In  charging  the  jury  in  the  case  of  the  United  States  vs.  Carr,  Mr.  Justice  Woods 
instructed  them  to  "  inquire  whether,  at  the  moment  he  tired  his  piece  at  the  deceased 
(a  prisoner  attemjUing  to  escape  from  the  guard),  with  his  surroundings  .at  the  time,  the 
accused  had  rcasnnai)le  ground  to  believe,  and  did  believe,  that  the  killing  or  serious 
wounding  of  the  deceased  was  necessary  to  the  suppres>;ion  of  a  nuUiny  then  and  there 
existing,  <>r  of  a  disorder  which  sjH'edily  threatened  to  ripen  into  a  mutiny.  If  he  had 
reasonable  ground  so  to  believe,  and  did  so  believe,  then  the  killing  was  not  unlawful. 
*  *  *  But  iTmust  be  understood  that  tlie  law  will  not  recpiire  an  otJicer  charged  with  the 
order  and  discipline  of  a  camp  or  fort  to  weigh  with  scrupulous  nicety  the  amount  of 
force  necessary  to  suppress  disorder.  The  e.\ercise  of  a  reasonable  discretion  is  all  that 
is  required."     U.  S.  va   Carr,  1  Woods,  484. 


^1^  MILIIARY  LAW. 

This  requirement  appears  as  Article  10,  Section  14,  of  the  British  Code 
of  1774,  as  Article  10,  Section  13,  of  the  American  Articles  of  1776,  and  as 
No.  50  of  the  Articles  of  ISOG.  The  word  "  guard,"  which  did  not  appear 
in  the  Articles  of  1774  or  in  the  American  Code  of  1776,  appeared  for  the 
first  time  in  the  Articles  of  1806.  Save  that  the  offense  becomes  more 
serious  when  committed  by  a  member  of  a  guard,  as  is  indicated  by  the 
maximum  penalty  which  may  be  imposed  upon  conviction,  it  is  similar  in 
its  essential  elements  to  the  offense  of  leaving  the  place  of  parade,  exercise, 
etc.,  without  leave  from  a  commanding  officer,  which  is  defined  in  the  33d 
Article,  and  which  has  been  discussed  in  connection  therewith.' 

Akticle  41.  Aiiij  officer  who,  hy  any  means  /v/ialsoever,  occasions  false 
alarms  in  camp,  garrison,  or  quarters  shall  suffer  death,  or  such  other 
piinishment  as  a  court-martial  may  direct. 

In  the  war  statutes  of  Kichard  II.  it  is  declared  to  be  a  heavy  offense  to 
spread  false  alarms,  and  the  provisions  of  those  statutes  have  been  continued 
in  several  succeeding  regulations  of  the  same  description.  Under  the  title 
of  "  disturbances  and  public  cries,"  a  punishment,  according  to  the  custom 
of  the  times,  is  awarded  by  the  war  articles  of  Henry  V.  against  any  one,  of 
what  condition,  nation,  and  degree  or  dignity  soever,  who  shall  dare  to  make 
any  clamor  or  disturbances  by  which  the  army  may  be  disturbed.  There  are 
similar  regulations  which  were  in  force  during  the  reign  of  Henry  VIII.' 

In  the  ordinance  of  the  Earl  of  Northumberland,  issued  during  the  reign 
of  Charles  I.,  there  are  two  Articles  comprehending  most  of  the  offenses 
included  in  the  present  Article:  1.  "No  man  shall  give  a  false  alarm,  or 
discharge  a  piece  in  the  night,  or  make  any  noise,  without  a  lawful  cause, 
upon  pain  of  death."  2.  "  No  man  shall  presume  to  draw  a  sword  without 
order,  after  the  watch  is  set,  upon  pain  of  death."  '  In  Article  30  of  the 
Prince  Eupert  Code  the  above  requirement  appears  in  the  following  form: 
'*  No  Souldier  shall  j^resume  to  make  any  alarm  in  the  quarter,  by  shooting 
off  his  musquet  in  the  night,  after  the  watch  is  set,  unless  it  be  at  an 
Enemy,  upon  pain  of  suffering  such  punishment  as  a  Court-Martial  shall 
think  fit."  The  provision  appears  in  its  present  form  as  Article  9,  Section 
14,  of  the  British  Code  of  1774,  as  Article  9,  Section  13,  of  the  American 
Articles  of  1776,  and  as  No.  49  of  the  Articles  of  1806.  The  British 
Articles  of  1774  authorized  the  penalty  of  death  to  be  imposed  only  upon 
conviction  of  the  offense  when  serving  in  "  foreign  parts  ";  in  Great  Britain 
and  Ireland,  and  in  the  Channel  Islands,  the  punishment  was  discretionary 
with  the  court-martial. 

The  mischiefs  which  the  Article  is  intended  to  prevent  are,  first,  the  dis- 
turbance of  the  quiet  of  the  camp  or  quarters,  whereby  the  troops  might  be 
deprived  of  that  seasonable  refreshment  from  sleep  which  nature  and  the 

'  See  Article  33,  supra.  «  Samuel,  574.  '  Ibid.,  575. 


TUE  ARTICLES  OF   WAR.  415 

fatigues  of  war  render  requisite;  and  secondly,  tlie  harassing  and  vexing  of 
the  soldiers  by  unfounded  alarms,  as  a  consequence  of  which  there  might 
be  a  failure  to  give  due  heed  to  a  genuine  signal  of  alarm  sounded  upon  a 
proper  occasion,  and  in  obedience  to  which  their  prompt  and  immediate  ser- 
vices would  be  demanded.' 

Aeticle  42.  Any  officer  or  soldier  who  niishehaves  himself  before  the 
enemi/,  runs  aivay,  or  shainefuUij  abandons  any  fort,  post,  or  guard  which 
he  is  commanded  to  defend,  or  speaks  words  inducing  others  to  do  the  like, 
or  casts  awai/  his  arms  or  ammunition,  or  quits  his  post  or  colors  to  plutider 
or  pillage,  shall  suffer  death,  or  such  other  punishment  as  a  court-martial 
may  direct. 

The  several  offenses  made  punishable  by  this  Article  can  be  traced  in 
substance  to  Articles  21,  23,  and  23  of  the  Prince  Rupert  Code,  which  were 
embodied  in  a  somewhat  modified  form  as  the  32d,  33d,  and  34th  of  the 
British  Articles  of  1672.  In  its  present  form  the  provision  appeared  as 
Articles  12  and  13,  Section  14,  of  the  British  Code  of  1774,  as  Articles  12 
and  13  of  the  American  Articles  of  1770,  and  as  No.  52  of  the  Articles,  of 
1806.  Article  12,  .Section  14,  of  the  British  Code  of  1774  and  the  corres- 
ponding Article  of  the  American  Code  of  1776,  having  been  substantially 
merged  in  Article  52  of  the  Code  of  1806,  were  omitted  from  the  revisions 
of  1806  and  1874. 

Misbehavior  before  the  enemy  may  be  exhibited  in  tlie  form  of  cowardice, 
or  it  may  consist  in  a  willful  violation  of  orders,  gross  negligence  or  ineffi- 
ciency, or  in  an  act  of  treason  or  treachery,  etc.*  It  need  not  be  committed 
in  the  actual  sight  of  the  eiiemy,  but  the  enemy  must  be  in  the  neighbor- 
liood,  and  the  act  of  otfense  must  have  relation  to  some  movement  or  service 
directed  against  the  enemy,  or  growing  out  of  a  movement  or  operation  on 
his  part.  It  may  be  committed  in  an  Indian  war,  as  well  as  in  a  foreign  or 
civil  war.' 

The  term  "  his  arms  or  ammunition  "  does  not  refer  to  arms,  etc.,  which 
are  the  personal  property  of  the  soldier,  but  means  such  as  have  been 
furnished  to  him  by  the  proper  officer  fot  use  in  the  service.     The  term  is 

'  Samuel,  575. 

'  The  phases  which  this  offense  may  assume  are  well  ilhistrated  in  the  eases  published 
in  the  followini;  General  Orders  of  the  War  Department  :  G.  O.  5,  War  Dept..  1857; 
do  183,  id.,  1862:  do.  IS,  i:!4,  146,  189,  204,  229.  282,  317,  id.,  1863;  do.  27.  64.  id., 
1864;  G.  C.  M.  O.  90,  114.  272.  279,  id.,  1864  ;  do.  53,  91,  107,  124,  126,  134,  191,  421, 
id.,  1865. 

'Dig.  J.  A.  Gen.,  40,  par.  1.  See  the  case  reported  in  General  Orders  No.  5,  War 
Department,  1857,  in  which  a  soldier  was  sentenced  to  be  hung  upon  conviction  of  mis- 
behavior before  the  enemy  on  the  occasion  of  a  fight  with  the  Indians.  O'Brien  sug- 
gests that  the  somewhat  vague  and  general  statement  of  the  several  offenses  set  forth  Tn 
this  Article  was  intentional  and  done  "in  order  that  all  kinds  of  misbehavior  might  be 
included  within  it3  scope,  leaving  it  to  the  court-marl ial  to  assign  to  each  |>arTi(ular 
fault  its  appropriate  punishment."  O'Brien,  142.  See,  also,  Samuel,  592;  Hough,  Prac- 
tice, etc.,  336. 


410  MILITARY  LAW. 

to  be  construed  iu  connnection  with  the  further  similar  expression  "  his 
post  or  colors."  ' 

Pillaging  and  Plundering. — The  act  here  made  criminal  involves,  and 
is  iu  substance  an  aggravated  form  of,  the  offense  of  "  quitting  a  guard, 
platoon,  or  division"  described  and  made  punishable  by  the  40th  Article  of 
War.  It  includes  a  willful  abandonment  of  his  post  on  the  part  of  an  officer 
or  enlisted  man  with  the  intention  of  committing  acts  of  pillage  and  plunder. 
"  The  mischiefs  produced  or  likely  to  be  produced  by  this  offense  are  many 
and  obvious;  among  which  may  be  numbered  the  diversion  of  the  soldiery 
from  the  first  and  grand  object,  the  pursuit  and  destruction  of  the  enemy, 
for  a  trilling  and  pitiful  gain ;  the  dispersion  often  of  the  strength  of  an 
army  to  such  wide  and  distant  points  as  to  render  it  impracticable  for  it  to 
be  collected  again  on  a  sudden  emergency  or  need;  and  the  easy  extermina- 
tion of  the  forces  in  this  divided  and  isolated  state.  *  *  *  The  anticipation 
of  any  one  of  the  results  enumerated  is  sufficient  to  have  induced  the  rulers 
or  generals  of  ancient  as  well  as  modern  armies  to  punish  so  dangerous  an 
offense  with  the  highest  possible  punishment."  ' 

Aeticle  43.  //  (my  commamler  of  any  garrison,  fortress,  or  post  is  com- 
pelled, by  the  officers  and  soldiers  under  his  command,  to  give  up  to  the 
enemy  or  to  abandon  it,  the  officers  or  soldiers  so  offending  shall  suffer  death, 
or  such  other  punishment  as  a  court-martial  may  direct. 

The  act  of  unlawful  compulsion  here  defined  and  made  punishable  is  in 
fact  a  form  of  mutiny,  and  as  such  properly  chargeable  under  the  22d  Article 
of  War.  This  provision  appears  as  Article  22,  Section  14,  of  the  British  Code 
of  1774,  as  Article  22,  Section  13,  of  the  American  Articles  of  1776,  and  as 
No.  59  of  the  Articles  of  1806. 

Aeticle  44.  A^iy  person  belonging  to  the  armies  of  the  United  States 
ivho  makes  known  the  ivatchword  to  any  person  not  ejititled  to  receive  it., 
according  to  the  rules  and  discipline  of  war,  or  presumes  to  give  a  parole  or 
watchword  different  from  that  which  he  received,  shall  suffer  death,  or  such 
other  punishment  as  a  court-martial  may  direct. 

Article  33  of  the  Prince  Rupert  Code  contained  the  requirement  that 
"  whoever  makes  known  the  Watch-word  without  order,  or  gives  any  other 
Word  but  what  is  given  by  the  Officer,  shall  suffer  death,  or  such  other 
punishment  as  Our  General  Court-Martial  shall  think  fit."  The  present 
provision  appears  as  Article  15,  Section  14,  of  the  British  Code  of  1774,  as 
Article  15,  Section  13,  of  the  American  Articles  of  1776,  and  as  No.  53  of 
the  Articles  of  1806. 

In  the  United  States  service  the  countersign  is  not  published  in  orders, 
but  is  communicated  confidentially  to  those  who  are  entitled  to  receive  it; 


'  Dig.  J.  A.  Gen.,  40,  par.  2.    See  Samuel,  592;  Hough,  Practice,  etc.,  336. 
»  Samuel,  585. 


THE  MlTlCLEi^   OF    WAR.  417 

that  is,  to  the  officers  and  non-commissioned  officers  of  the  guard,  to  such 
members  of  the  guard  as  are  actually  engaged  in  the  performance  of  duty  as 
sentinels,  and  to  such  other  persons  as  are  })ermitted  or  required,  on  account 
of  their  official  duties,  to  pass  and  repass  a  line  of  sentinels  at  night. 

The  parole,  which  serves  as  a  check  upon  the  countersign,  is  given  only 
to  those  wlio,  Vjy  their  office  or  duty,  are  entitled  to  visit  and  inspect  guards 
or  sentinels  at  night.  It  is  used  solely  as  a  means  of  identification,  but  it 
cannot  avail  as  a  passport  unless  accompanied  by  the  countersign.  The 
term  "  watchword,"  as  used  in  the  Article,  comprehends  not  only  the 
countersign  and  parole,  but  any  preconcerted  word  or  signal  issued,  by  com- 
petent authority,  for  a  similar  purpose  in  the  performance  of  guard  or 
outpost  duty. 

The  offense  may  be  committed  by  any  military  person  who  makes  known 
the  watchword  to  one  not  entitled  to  receive  it,  in  accordance  with  existing 
orders  and  regulations,  or  who  gives  a  parole  or  watchword  different  from 
that  which  he  received.  As  no  specific  intent  is  set  forth  in  the  statute,  the 
offense  may  be  committed  through  negligence  or  inadvertence,  or  with  the 
intent  to  convey  the  watchword  to  the  enemy;  the  offense  would  be  com- 
plete in  either  case. 

Article  45.  Whosoever  relieves  the  enemy  unth  money,  victuals,  or  am- 
viunitioti,  or  knoicinyly  harbors  or  protects  an  enemy,  shall  suffer  death,  or 
such  other  punishment  as  a  court-martial  may  direct. 

Article  46.  Wltosoever  holds  correspondence  with  or  gives  intelligence 
to  the  enemy,  either  directly  or  indirectly,  shall  suffer  death,  or  such  other 
punishjnent  as  a  court-martial  may  direct. 

These  provisions  appear  respectively  as  Articles  18  and  19,  Section  14, 
of  the  British  Code  of  1774,  as  Articles  IS  and  19,  Section  13,  of  the  Ameri- 
can Articles  of  1776,  and  as  Nos.  50  and  57  of  the  Articles  of  1806. 

In  view  of  the  general  term  of  description  "whosoever"  in  these 
Articles  it  was  held,  during  the  late  war,  by  the  Judge-Advocate-General  and 
by  the  Secretary  of  War,  and  has  been  held  later  by  the  Attorney-General, 
that  civilians,  equally  with  military  persons,  were  amenable  to  trial  and 
punishment  by  court-martial  under  either  Article.'  But  the  sounder  con- 
struction would  seem  to  be  that,  as  the  Articles  of  War  are  a  code  enacted 
for  the  government  of  the  military  establishment,  they  relate  only  to  persons 
belonging  to  that  establishment  unless  a  different  intent  should  be  expressed 
or  otherwise  made  manifest.  No  such  intent  is  so  expressed  or  made  mani- 
fest.    Persons  not  belonging  to  the  military  establishment  may  be  proceeded 

'  Diir.  .1.  A.  Greii..  40.  par.  1.  Admittini;  this  construction  to  be  warranted  so  far  as 
relates  lo  acts  committed  on  the  tlu-iitre  of  war  or  within  a  district  under  martial  law,  it 
is  to  be  noted  that  it  is  the  effect  of  the  leadiii}:  adjudged  cases  to  v">reclude  the  exercise 
of  the  military  jurisdiction  over  this  class  of  offi-iises  when  committed  by  civilians  in  places 
not  under  military  gDVcinnient  or  ni;irtial  l.iw.  See.  especially,  Ex  parU  Milligan,  4 
Wallace,  121-123;  Jones  c«.  Sewaid.  40  Barb.,  563.     Ibid.,  40,  par.  1,  note. 


418  MILITARY  LAW. 

against  for  the  acts  mentioned  in  the  Article,  but  it  is  by  virtue  of  the 
power  of  another  jurisdiction,  namely,  martial  law;  and  martial  law  does 
not  owe  its  existence  to  legislation,  but  to  necessity.'  The  scope  of  these 
Articles  under  the  legislation  of  1776,  apparently  extending  their  applica- 
tion to  civilians,  seems  to  have  been  modified  as  a  consequence  of  the 
adoption  of  the  Constitution. 

Relieving  the  Enemy. — The  act  of  "relieving  the  enemy"  contem- 
plated by  this  Article  is  distinguished  from  that  of  trading  with  the  enemy 
in  violation  of  the  laws  of  war;  the  former  being  restricted  to  certain  par- 
ticular forms  of  relief,  while  the  latter  includes  every  kind  of  commercial 
intercourse  not  expressly  authorized  by  the  government."  It  is  none  the  less 
relieving  the  enemy  under  this  Article  that  the  money,  etc.,  furnished  is 
exchanged  for  some  commodity,  as  cotton,  valuable  to  the  other  party.' 

Holding  Correspondence  with  the  Enemy. — The  offense  of  holding  corre- 
spondence with  the  enemy  is  completed  by  writing  and  putting  in  progress  a 
letter  to  an  enemy,  as  to  an  inhabitant  of  an  insurrectionary  State  during 
the  late  war;  it  not  being  deemed  essential  to  this  offense  that  the  letter 
should  reach  its  destination.*  It  is  essential,  however,  to  the  offense  of 
givins:  intelligence  to  the  enemy  that  material  information  should  actually  be 
communicated  to  him;  and  such  communication  may  be  verbal,  in  writing, 
or  bv  sisruals.' 

"  The  rule  which  declares  that  war  makes  all  the  citizens  or  subjects  of 
one  belligerent  enemies  of  the  government  and  of  all  the  citizens  or  subjects 
of  the  other  applies  equally  to  civil  and  to  international  wars.-'  An 
insurrectionary  State  is  no  less  "  enemy's  country,"  though  in  the  military 
occupation  of  the  United  States,  with  a  military  governor  appointed  by  the 
President.' 

Article  47.  Any  officer  or  soldier  who,  having  received  pay  or  having 
been  duly  enlisted  in  the  service  of  the  United  States,  deserts  the  same,  shall, 
in  time  of  tear,  suffer  death,  or  such  other  punishment  as  a  court-martial 
may  direct ;  and  in  time  of  peace,  any  punishment  excepting  death  which 
a  court-martial  may  direct. 

The  first  statutory  recognition  of  this  offense  in  England  dates  from  the 
middle  of  the  fifteenth  century,  and  will  be  found  in  an  enactment'  confer- 
ring the  status  of  felony  upon  a  soldier  who  deserted  from  the  captain  whom 

'  Opin.  .T.  A.  Gen. 

*  Dig.  .1.  A.  Geu.,  41,  par.  4. 
'  Ihid.,  par.  3. 

*  Ihid.,  42,  par.  1. 

*  Ibid.,  par.  2. 

'  The  Service.  2  Wall.,  274,  418.  See,  also,  the  opinion  of  the  U.  S.  Supreme  Court 
(frequently  since  reiterated  in  substance)  as  given  by  Grier,  J.,  in  the  "Prize  Cases." 
2  Black,  66fi  (862),  and  by  Chase,  C.J.,  in  the  cases  of  Mrs.  Alexander's  Cotton  ;  and 
Dig.  Opin.  J.  A.  Gen.,  41,  par.  2. 

'  18  Henry  VI.,  ch.  19. 


THE  ARTICLES  OF   WAR.  411) 

he  had  contracted  to  serve.     At  u  soinewliut  later  date  the  penalties  of  this 
statute  were  extended  to  soldiers  who  had  contracted  to  serve  the  crown.' 

Although  the  crime  of  desertion  was  made  a  capital  offense  in  the  first 
Mutiny  Act,  the  offense  itself  is  not  defined  in  that  enactment,  nor  does  it 
appear  as  a  military  offense  in  the  Articles  of  War  issued  by  Jame.s  II.  under 
the  royal  prerogative  in  IfJSG.  The  British  Code  of  177-4  contains  the  fol- 
lowing requirement:  "  All  ofllcers  and  soldiers  who,  having  received  pay  or 
having  been  duly  inlisted  in  Our  Service,  shall  be  convicted  of  having 
deserted  the  same,  shall  suffer  death,  or  such  other  Punishment  as  by  a 
Court-Martial  shall  be  inflicted."  ^  The  provision  appears  as  Article  1,  Sec- 
tion G,  of  the  American  Code  of  1776  in  the  following  words:  "  All  officers 
and  soldiers  who,  having  received  pay  or  having  been  duly  enlisted  in  the 
service  of  the  United  States,  shall  be  convicted  of  having  deserted  the  same, 
shall  suffer  death,  or  such  other  punishment  as  by  a  court-martial  shall  be 
inllicted."  With  a  slight  verbal  change  in  the  first  line,  the  Article  appears 
as  No.  20  of  the  Articles  of  180G.  Such  modifications  as  the  statute  has 
undergone  since  180G  have  had  chiefly  to  do  with  the  penalty  imposed  upon 
conviction  of  the  offense  in  time  of  peace.' 

The  Act  of  May  20,  1830,*  contained  the  requirement  that  "  no  officer 
or  soldier  in  the  Army  of  the  United  States  shall  be  subject  to  the  punish- 
ment of  death  for  desertion  in  time  of  peace."  In  cases  in  which  the  death- 
penalty  was  not  inflicted  prior  to  this  enactment,  flogging  was  frequently 
imposed  upon  enlisted  men  as  a  punishment  for  desertion  in  common  with 
a  number  of  the  more  serious  military  offenses;  and,  under  the  name  of 
"  corporal  punishment,"  was  more  than  once  recognized  in  the  Articles  of 
180G.  The  Act  of  ^Nlay  IG,  1812,'  however,  repealed  so  much  of  the  Articles 
of  180G  as  authorized  the  infliction  of  corporal  punishment  by  stripes  or 
lashes;  but  this  requirement  was  itself  repealed,  as  to  the  offense  of  deser- 
tion, by  the  Act  of  March  2,  1833.*  Flogging,  as  a  form  of  military  punish- 
ment, was  finally  abolished  by  the  Act  of  August  5,  ISGl,'  which  is  em- 
bodied in  the  98th  Article  of  War. 

The  infliction  of  the  death-penalty  for  desertion  in  time  of  peace,  which 
was  abolished  in  the  United  States  service,  as  has  been  seen,  by  the  Act  of 
May  29,  1830,'  continued  to  be  inflicted  in  the  United  Kingdom  until  some 

'  7  Henry  VII.,  ch.  1;  3  Henry  VIII.,  ch.  25;  2  aud  3  Edward  VI.,  ch.  -2,  which  was 
re-en:icte(l  m  4  luui  Tt  Phil,  unci  Msiry,  ch.  3,  sec.  8. 
"^  Article  1.  Section  6, 

*  An  icieii  of  the  importance  of  the  offense,  aud  of  the  freqviency  of  its  occurrence  in 
the  Ilevolutionar\-  armies,  may  be  trained  by  an  examination  of  the  Resolutions  of  Con- 
gress of  May  31,  17S(>,  in  respect  to  the  pursuit  and  apprehension  of  deserters.  They 
appear  at  the  close  of  the  clauses  amendatory  of  the  Articles  of  War  in  regard  to  the 
procedure  of  courts-man ial  in  Volume  II.  of  Wiuthrop's  Military  Law,  page  97. 

*  4  Stat,  at  Large,  418. 
i2ibui.,  735. 

*  4  tbid.,  647. 

■<  12  ibid..  317. 
^  iibid.,  418. 


420  MILITARY  LAW. 

time  after  the  beginuiug  of  the  present  century.  It  was  authorized  by- 
statute  in  Great  Britain  until  1881  as  a  punislim6nt  for  the  offense  of 
desertion  when  committed  in  active  service,'  but  was  abolished  by  implica- 
tion in  Section  44  of  that  enactment,  which  describes  the  different  punish- 
ments authorized  to  be  intiicted  upon  enlisted  men.  In  time  of  peace, 
however,  the  punishment  is  graded  according  to  the  character  of  the  offense; 
the  maximum  penalty  being  penal  servitude,  in  addition  to  which  an 
"  ignominious  discharge  "  may  be  imposed  at  the  discretion  of  the  court.* 

Desertion  is  the  most  serious  offense,  involving  unauthorized  absence, 
that  is  known  to  military  law;  it  is  punished  severely  at  all  times,  and  in 
time  of  war  may  be  punished  with  death.  The  Article  describes  the 
persons  by  whom  the  offense  may  be  committed  (who  may  be  either  officers 
or  enlisted  men),  but  contains  no  definition  of  the  offense  itself,  which  is 
determined  by  the  custom  of  service.  The  offense  may  be  committed 
(a)  by  an  officer  or  a  duly  enlisted  soldier,  and  {b)  by  one  who,  by  the 
receipt  of  pay,  allowances,  or  emoluments  incident  to  his  station  in  the 
service,  has  voluntarily  accepted  the  military  status. 

Definition. — Desertion  may  therefore  be  defined  as  an  unauthorized 
absenting  of  himself  from  the  military  service  by  an  officer  or  soldier,  with 
the  intention  of  not  returning.  In  other  words,  it  is  the  violation  of  mili- 
tary discipline  familiarly  known  as  absence  without  leave  (whether  consisting 
in  an  original  absenting  without  authority,  or  in  an  overstaying  of  a  defined 
leave  of  absence),  accompanied  by  an  animus  renianetidi  or  non  reverteudi ; 
this  animus  constituting  the  gist  of  the  offense.  In  order  to  establish  the 
commission  of  the  specific  offense,  both  these  elements — the  fad  of  the 
unauthorized  voluntary  withdrawal  and  the  intent  permanently  to  abandon 
the  service — must  be  proved.' 

The  Intent. — The  intent  may  be  inferred,  not  indeed  from  the  fact  of 
absenting  alone,  but  from  the  circumstances  attending  this  fact,  and  here 
the  duration  of  the  absence  is  especially  material.  Thus  the  circumstance 
that  the  absence  has  been  exceptionally  protracted  and  quite  unexplained 
will  in  general  furnish  a  presumption  of  the  existence  of  the  necessary 
intent.  An  unauthorized  absence,  however,  of  a  few  hours,  terminated  by  a 
forcible  apprehension,  may,  under  certain  situations,  be  sufficient  evidence 
of  such  intent  and  thus  proof  of  a  desertion;  while  an  absence  for  a  consid- 
erable interval,  unattended  by  circumstances  indicating  a  purpose  to 
separate  permanently  from  the  service,  or  to  dissolve  the  pending  engage- 
ment of  the  soldier,  may  be  proof  simply  of  the  minor  included  offense.  In 
order  to  determine  whether  or  not  the  officer  or  soldier  absented  himself  with 


'  Manual  Mil.  Law.  30.     For  corporal  punishments  which  may  be  imposed  upon 
«nlisfpd  men  in  the  British  service,  see  ibid.,  751. 

*  Man.  Mil.  Law,  340-342;  1  Clode,  Mil.  Forces,  154. 
»  Dig.  J.  A.  Gen..  337,  par.  1. 


THE  ARTICLES  OF  WAR.  421 

the  intent  not  to  return,  i.e.,  whether  his  offense  was  desertion  or  absence 
witiiout  leave,  all  the  circumstances  connected  with  his  leaving,  absence,  and 
return  (whether  compulsory  or  voluntary)  must  be  considered  together. 
Each  case  must  be  governed  by  its  own  peculiar  facts,  and  no  general  rule 
on  the  subject  can  be  laid  down.' 

Essential  Elements  of  the  OfiFense. — The  liability  of  the  offender  having 
been  established,'  the  offense  will  be  found  to  consist  in  absence  without 


'  Dig.  J.  A.  Gen.,  337,  par.  1.  Where  an  officer  left  his  post  on  a  three  days'  leave 
of  absence  aud  did  not  return  to  duty  or  report  liimself  at  the  proper  time,  but  ab- 
sconded to  Canada  with  a  large  amount  of  government  funds,  held,  on  his  being  arrested 
some  months  subsequently  in  the  United  Stales,  that  he  was  clearly  chargeable  with  the 
offense  of  desertion.^  So  where  an  othcer,  having  tieen  guilty  of  sundry  embezzlcineuls 
and  frauds,  and  become  involved  in  debt,  and  being  on  the  point  of  being  placed  in  arrt-st, 
obtained,  by  means  of  wholl}'  false  renreseutalions,  a  brief  leave  of  absence  from  his 
post  for  the  expressed  purpose  of  visiting  u  certaia  placed  named,  and  was  subsequently 
apprehended  at  a  place  quite  other  and  much  more  distant  than  that  designated,  and 
while  rapidl}'  traveling  en  route  for  a  still  more  leinole  locality. — ft.cld.  in  the  ab.sence  of 
any  evidence  to  rebut  the  presumption  thus  raised,  that  he  wus  properly  chargeable  with 
having  absented  himself  with  the  (inirnus  of  a  deserter.     Ibid.,  '63S,  par.  2. 

But  that  a  soldier  has  been  charged  with  a  desertion  is  no  evidence  that  he  has  com- 
mitted the  olTense.  Thus  held  that  the  mere  fact  that  a  soldier,  absent  without  authority, 
had  been  arrested  aud  returned  to  his  regiment  as  a  deserter  was  no  proof  whatever  of 
the  offense  charged.  So  held  that  a  mere  entry  on  a  morning-report  book,  descriptive 
roll,  or  other  official  statement  or  return,  that  a  solilier  deserted  on  a  certain  day,  was  not 
legal  evidence  of  a  desertion  by  him,  but  was  evidence  only  that  he  had  been  charged 
with  desertion. f  So  a  report  from  the  Adjutant-General's  Office  containing  extracts 
from  the  muaterrolls  of  a  regiment  on  which  a  soldier  of  the  same  was  noted  as  having 
deserted  on  a  certain  date,  held  incompetent  evidence  of  the  fact  of  desertion,  upon  a  trial 
of  the  soldier  for  that  olTense^  Similarly  held  that  the  mere  statement  of  a  first  ser- 
geant, given  as  testimony  on  the  trial  of  a  soldier  of  his  company  charged  with  desertion, 
that  the  accused  "  deserted  "  at  a  certain  time  and  jilace,  was  insufficient  as  proof  of  the 
offense  charged,  being,  indeed,  but  an  assertion  of  a  conclusion  of  law.  In  such  cases  it 
is  for  the  witness  simply  to  slate  the  facts  and  circumstances,  so  far  as  known  to  him, 
attending  the  act  charged  ;  it  being  the  province  of  the  court  alone  to  arrive  at  the  con- 
clusion tliat  the  offense  has  been  committed.  To  convict  a  deserter  upon  an  accusation 
merely,  however  formally  and  officially  the  same  may  be  made,  would  be  as  unwar- 
ranted in  law  as  it  wouUl  be  unjust  in  fact.     Ibid.,  339," par.  3. 

The  fact  that  a  soldier  has  been  dropped  from  the  rolls  as  a  deserter  is  not  legal  evi- 
dence to  prove  the  fact  of  desertion  on  a  trial  for  that  offen.se.      Ibid..  346.  par.  23. 

'  In  a  recent  decision  of  the  Supreme  Court  it  was  held  that  that  the  taking  of  the  oath 
of  enlistment  "  was  the  pivotal  fact  which  operated  to  change  the  statiis  and  to  charge 
the  person  so  enlisting  with  the  military  duties  and  responsibilities  incident  to  that  rela- 
tion."^ Proof  of  due  enlistment  will  in  general  be  alforded  bj-  the  production  of  the 
contract  of  enlistment  containing  the  oath  above  referred  to.  "  In  the  second  case,  the 
receipt  of  pay,  allowances,  etc.,  evidence  such  an  acquiescence  in  or  acceptance  of  the 
military  status;  and  such  acquiescence,  if  established  in  evidence,  will  suffice  to  fi.x  upon 
the  offender  the  military  character,  to  the  extent  of  making  him  liable  to  trial  and  punish- 
ment for  desertion;  and  this  independently  of  the  manner  in  which  he  came  into  the 
service,  whether  by  voluntary  enlistment,  by  conscripti()n,  or  as  a  member  of  a  militia 
organization,  in  obedience  to  a  call  of  the  President,  in  lime  of  war  or  public  danger. 

In  a  great  majority  of  cases  the  proof  required  in  support  of  the  allegation  that  the 
accused  was  a  duly  enlisted  .soldier  is  limited  to  ihe  testimony  of  one  or  more  witnesses 
who  identify  him  as  a  member  of  the  comi)an}-  and  reiriment  from  which  he  de-serted. 
It  very  rarely  becomes  necessary  to  produce  a  copy  of  the  enlistment-paper  in  order  to 
establish  ihe  fact  of  his  "  having  been  duly  enlisted  in  the  service  of  the  United  States." 

*  See  G.  O.  3K.  War  Dept..  18C3. 

t  Compare  Q.  0.  M  O.  Xi.  Dept.  of  the  Missouri,  1875.  See  the  title  "Charges  of  Desertion,"  p.  429. 
poit. 

t  Compare  Hanson  i'*  S.  Scituate,  115  Mass.,  330. 
§  In  re  Qrimley,  137  U.  S..  147. 


422  MILITARY  LAW. 

leave,  with  the  added  intention  of  not  returning.  The  fact  of  unanthorized 
absence  is  establislied  as  in  absence  without  leave; '  the  intent  not  to  return 
will  in  general  be  proved  by  circumstantial  evidence  as  to  the  facts  atteud- 
ino-  the  departure  of  the  accused,  or  the  character  and  duration  of  the 
absence.  It  is  the  duty  of  an  officer  or  enlisted  man  when  absent  from  any 
cause  to  return  at  once  to  his  post  of  duty;  a  faikire  to  return,  therefore, 
if  persisted  in  for  a  sufficient  time,  will  suffice  to  create  the  presumption  of 
an  intent  not  to  return  wliich  constitutes  the  offense  of  desertion.' 

The  nature  of  the  offense  of  desertion  is  well  illustrated  in  cases  of 
escape.  The  mere  fact  that  a  soldier  while  awaiting  trial  or  sentence,  or 
while  under  sentence  (and  not  discharged  from  the  service),  escapes  from 
his  confinement  is  not  proof  of  a  desertion  on  his  part,  since  lie  may  have 
had  in  view  some  minor  object,  such  as  the  procuring  of  liquor,  etc'  But 
an  escape  followed  by  a  considerable  absence,  especially  if  the  soldier  is 
obliged  to  be  forcibly  apprehended,  is  strong  presumptive  evidence  of  the 
existence  of  the  intent  necessary  to  constitute  the  crime.  So,  though  the 
absence  involved  may  be  comparatively  brief,  the  circumstances  accompany- 
ing the  escape,  or  attending  the  apprehension,  may  be  such  as  to  justify  an 
equally  strong  presumption.  An  escape  with  intent  not  only  to  evade  con- 
finement but  to  quit  the  service,  while  the  party  is  held  awaiting  proceedings 
for  desertion,  is  of  course  a  second  or  additional  desertion." 


1  Every  desertion  includes  an  offense  of  absence  witbout  leave.  See  Dig.  J.  A.  Gen., 
345.  par.  18. 

'  Tliis  period  is  fixed  at  ten  days  in  paragraph  133,  Army  Regulations  of  1895. 

3  See  a  case  of  this  nature  (an  escaping  in  order  to  obtain  liquor)  in  G.  O.  32,  Dept. 
of  the  South,  1873;  and  compare  the  case  in  do.  87,  id.,  1872,  in  which  a  conviction  of 
desertion  is  disapproved  on  the  ground  that  the  evidence  showed  "  merely  an  escape 
from  the  guard-house  without  intention  to  leave  the  service  or  the  vicinity  of  the  post." 
And  see  in  this  connection  Samuel,  324,  where  to  be  "discovered  "  after  a  short  absence 
"  in  the  pursuit  of  .some  accidental  temporary  object,  though  perliaps  otherwise  illicit," 
is  instanced  as  not  indicating  an  intent  by  the  offender  "  to  sever  himself  from  the  ser- 
vice."    Dig.  J.  A.  Gen.,  340,  par.  4,  note  1. 

^Dig.  J.  A.  Gen.,  340,  par.  4.  As  to  the  nature  of  the  offense  which  may  be 
involved,  there  is  properly  no  substantial  distinction  between  an  escape  while  awaiting 
trial  or  sentence  and  an  escape  while  in  confinement  under  .sentence.  An  escape, 
indeed,  from  an  imprisonment  imposed  by  sentence  would  probably  be  more  likely  to  be 
characterized  by  an  animns  non  reverteiuU  than  an  escape  from  a  luerely  preliminary 
confinement  in  arrest.  So  an  escape  from  confinement  while  awaiting  trial  upon  a 
grave  charge,  which  must  entail  upon  conviction  a  severe  punishment,  would  naturally 
be  more  generally  so  cliaracterized  than  an  escape  from  an  arrest  upon  a  charge  of 
inferior  consequence. 

Undoubtedly  in  the  great  majority  of  cases  escape  is  desertion;  the  precedents,  how- 
ever, show  that" it  is  not  necessarily  so  ;*  and  upon  tin;  mere  fact  alone  that  a  soldier  has 
liberated  himself  from  military  custody,  it  is  not  just  to  convict  him  of  having  designed 
to  dissolve  his  contract  and  permanently  al)andon  the  military  service.  Of  course  an 
escape  from  legal  military  custody  is  alw.-iys  nn  offense,  and  the  soldier  who  has  escaped 
may  (where  his  act  does  not  amount  to  a  desertion)  be  J)iought  to  trial  for  such  offense  as 
"  conduct  to  the  j)reju(iice  of  good  order  and  military  discipline." 

It  need  hardly  be  added  that  an  escape  from  imprisonment  tmder  sentence,  effected 
by  a  party  who  has  been  dishonorably  discharged  under  the  same  sentence,  cannot  con- 


*  See  note  3,  supra. 


THE  ARTICLES   OF   WAR.  423 

It  is  no  defense  to  u  cliarge  of  desertion  that  the  soldier  was  induced  to 
iibandon  tlie  service  by  reusoii  of  ill  treatment,  want  of  pro])or  food,  etc.; 
such  circumstances  can  only  i)alliate,  not  excuse,  the  ollense  committed.' 
It  is,  however,  a  complete  answer  to  a  charge  of  desertion  before  a  court- 
martial,  that  the  accused  lias  ])reviously  been  "restored  to  duty  without 
trial,"  as  sanctioned  by  paragraph  I'iS,  Army  Regulations,  provided  he  has 
been  so  restored  by  competent  authority,  i.e.,  the  commander  wlio  would 
have  been  authorized  to  convene  a  general  court  for  his  trial;  otherwise, 
however,  when  so  restored  by  a  superior  not  duly  authorized.' 

Apprehension  of  Deserters. — The  right  of  the  United  States  to  arrest 
and  bring  to  trial  a  deserter  from  the  military  service  is  paramount  to  any 
right  of  control  over  him  by  a  parent  on  the  ground  of  his  minority.'  Such 
arrests  may  be  made  by  military  persons  duly  authorized  for  that  purpose, 
or,  under  circumstances  presently  to  be  explained,  by  certain  civil  othcers 
under  authority  conferred  by  statute.* 

Rewards  for  the  Apprehension  of  Deserters. — The  reward  made  payable 
by  Army  Regulations  °  is  not  due  merely  on  the  apprehension  of  a  deserter; 


atitute  a  desertion  or  otlier  offense,  the  party  at  tlie  time  of  escape  being  no  longer  in 
the  military  service      Dig.  .J.  A.  Gen.,  ii40,  par.  4. 

Every  deseition  iiiciiKk-s  an  absence  without  leave.  Upon  a  trial  for  desertion  the 
accused  is  tried  also  for  the  absence  without  leave  involved  in  the  olfense  charged.  *  If 
ucquilted  without  reservatioii  of  the  desertion,  he  is  acquitted  also  of  the  lesser  offense. 
If  convicted,  as  he  may  be,  of  the  lesser  offense  only  under  a  charge  of  the  greater,  he  is 
acquitted  in  law  of  the  latter.     Ibid.,  ?AT}.  par.  18. 

'  Dig.  J.  A.  Gen.,  341,  par.  6.  So,  in  a  case  of  n  Swiss  who,  having  enlisted  in  our 
Army,  deserted  after  two  years  of  service,  ?uld  that  it  -was  no  defense  (though,  under 
the  circumstances,  matter  of  extenuation)  tiiat  his  act  had  been  induced  by  an  intense 
nostalgia  or  maladie  du  pays  So,  in  a  case  of  a  desertion  by  a  (iernian.  held,  that  the 
fact  that  he  had  received  a  notification  from  the  military  authorities  of  the  North  German 
Empire  to  report  at  home  for  nulitary  duty,  under  the  penalty  of  being  considered  as  a 
deserter  from  the  German  army,  constituted  no  tlefense  to  a  desertion  conunitled  by  liim 
from  our. service.  As  fo  the  jirinciple  of  the  right  of  expatriation  as  asserted  in  our 
public  law,  see  Sec.  1999,  Rev.  Sts.    Ibid. 

Held  to  be  no  defense  to  a  cliarge  of  desertion  that  the  accused,  at  the  time  of  the 
enlistment  which  he  is  diarged  with  having  abandoned,  was  an  unapprehended  deserter 
from  the  Army,  an  enlistment  of  a  deserter  being  not  void,  but  voidable  only.  Dig.  J. 
A.  Gen.,  341,  par.  ■>. 

•  Ibid.,  par.  7.  Enlisting  in  the  enemy's  army  by  prisoner  of  war  is  desertii  n  unless 
submitted  to  as  a  last  resort  to  save  life,  or  escape  extreme  suffering,  or  obtain  fiee- 
dom.  Thus,  in  a  case  of  a  U.  S.  soldier  who  entered  the  service  of  the  enemy  from  An- 
dersonville,  Ga  ,  in  the  late  war.  held  \\\ii\  the  burden  of  proof  was  on  him  to  establish 
that  he  resorted  to  such  enlistment  with  design  of  effecting  his  escape  and  rejoining  Ins 
own  army;  and  that  his  abatidoiiing  such  cnlistuu'nt  and  coming  within  our  lines  at  the 
tirst  opportunity  was  material  evidence  of  stich  a  design.  Ibid.,  34."i,  par.  20.  See,  also, 
paragraphs  23,  '23,  and  24,  p.  346,  ibid. 

^  Ibid..  345.  par.  19;  In  re  Cosenow,  37  Fed.  Rep.,  668;  In  re  Kauffman,  41  ibid., 
876;  In  re  Grimley,  137  U.  S..  147. 

*  Such  arrests,  however,  must  be  etfected  within  the  territorial  jurisdiction  of  the 
United  States,  unless  such  arrest  be  authorized  by  international  couvention.  See  Dig. 
J.  A   Gen..  346,  par.  21  ;  347,  ibid.,  par.  29 

'  Paragraph  124,  Army  Regulations  of  1S95. 


•  See  13  Opin.  .\tt.-Gen.,  460. 


424  MILITARY  LAW. 

he  must  also  be  delivered  "to  an  officer  of  the  Army  at  the  most  convenient 
post  or  recruiting  station."  The  fact  of  the  offer  of  a  reward  for  the  arrest 
of  a  deserter  does  not  authorize  a  breach  of  the  peace  or  tlie  commission  of 
an  illegal  act  in  making  the  arrest.' 

To  entitle  a  person  to  the  reward  for  the  arrest  of  a  deserter,'  the  party 
arrested  must  be  still  a  soldier.  Though  at  the  time  of  the  arrest  the 
period  of  his  term  of  enlistment  may  have  expired,  or  he  may  be  under  sen- 
tence of  dishonorable  discharge,  yet  if  he  has  not  been  discharged  in  fact, 
the  official  duly  making  the  arrest,  etc.,  on  account  of  a  desertion  committed 
before  the  end  of  his  term  becomes  entitled  to  the  payment  of  the  reward 
specified  in  the  regulations.' 

The  soldier  arrested  must  be  a  deserter  and  legally  liable  as  such.  If  he 
lias  been  judicially  determined  to  be  not  a  deserter,  as  where  he  has  been 
convicted  of  absence  without  leave  only,'  or  if,  in  view  of  the  limitation  of 
the  103d  Article,  he  has  a  legal  defense  to  a  prosecution  for  desertion,'  the 
reward  is  not  payable  for  his  apprehension.'  The  civil  official  takes  the  risk 
of  the  soldier  being  or  not  being  an  actual  deserter.  If  he  turns  out  to  be 
not  one,  the  official  loses  his  time  and  disbursements,  if  any.' 


'  Dig.  J.  A.  Gen.,  343,  par.  12.  See,  in  this  connection,  Cl;iy  vs.  United  States, 
Devereiix,  25,  in  which  an  officer  who,  under  the  orders  of  a  superior,  had,  without 
previously  procuring  proper  authority  to  enter  and  search  from  a  civil  magistrate, 
broken  into  a  dwelling-house  for  the  purpose  of  securing  the  ai  rest  of  certain  deserters, 
was  held  to  have  committed  an  unjustitiable  trespass,  and  iiis  claim  to  be  reimbursed  by 
the  United  States  for  the  amount  of  a  judgment  recovered  against  him  on  account  of 
his  iilegal  act  was  disallowed  by  the  Court  of  Claims. 

''  The  amount  of  the  reward  is  now  fixed  by  statute  at  a  sum  not  greater  than  ten 
dollars.  Acts  of  August  6,  1894,  (28  Stat,  at  Large,  239.)  February  12,  1895,  (28  ibid.. 
659,)  and  March  10,  1896  (29  ibid.,  65).  See,  also,  paragraph  124,  Army  Regulations  of 
1895. 

The  amoimt  of  the  reward— to  cite  from  G.  O.  325,  A.  G.  O.  of  1863— is  in  full 
"for  all  expenses  incurred  in  apprehending,  securing,  and  delivering  a  deserter."  Dis- 
bursements miide  by  a  civilian,  where  no  arrest  is  eflected,  are  at  his  own  ri.sk,  and 
cannot  legally  Ik;  reimbursed  by  the  military  authorities.     Dig.  J.  A.  Gen.,  344,  par.  13. 

-  Similarly  held  where  the  soldier,  arrested  when  at  large  a"  a  deserter,  hnd  been  sen- 
tenced to  confinement  (without  discharge)  and  had  escaped  therefrom.  Ibid.,  346,  par. 
26. 

*  See  paragraphs  134  and  126.  Army  Resulations  of  1895. 
6  See  par.  124,  ibid.,  and  G.  O.  22,  A.  G.  O.,  of  1893. 

•  Dig.  J.  A.  Gen.,  347,  par.  27.  Where  the  soldier  when  arrested  had  l)een  absent 
but  three  days,  and  was  still  in  uniform,  and  had  not  been  reported  or  dropped  a^  a 
deserter,  and  his  company  commander  had  not  tlie  "  conclusive  evidence  "  of  his  "  inten- 
tion not  to  return"  referred  to  in  par.  133,  A.  R.  of  1895,  held  that  there  was  not  suffi- 
cient evidence  that  lie  was  a  deserter  to  justify  the  payment  of  the  reward  for  his  arrest 
and  delivery.     Ibid.,  par.  28. 

Where  a  civil  official,  in  good  faith  and  in  compliance  with  military  instructions, 
made  the  arre-st  and  delivery  of  a  deserter,  who,  however,  was  of  tlie  class  of  deserters 
specified  in  G.  O.  22  of  1893,  viz.,  those  who  "would  have  the  ricrht  to  claim  exemption 
from  trial  and  punishment"  under  the  present  l()3d  Article  of  War— a  fact  not  wilhiu 
the  knowledge  of  the  official,  and  which  he  could  not  have  ascertained,  but  who  there- 
ff)re  had  no  legal  claim  for  the  payment  of  the  reward — held  that  the  reasona'  le 
exi)enses  of  such  official  incurrec  in  the  arrest,  etc.,  might  well  be  allowed  by  the  Secre- 
tary of  War  out  of  the  appropriation  for  the  contingent  expenses  of  the  armv.  Ibid., 
349,  par.  37. 

'  Ibid.     Thus  held  that  such  official  could  have  no  claim  to  be  reimbursed  his  expenses 


THE  ARTICLES  OF   ^VAR.  425 

The  Arrest  must  be  a  Legal  One.' — An  act  done  in  violation  of  law 
cannot  be  made  the  badis  of  a  legal  claim.  The  rule  of  tlie  common  law, 
that  a  peace  otticer  or  a  private  citizen  may  arrest  a  felon  without  a  warrant, 
does  not  extend  to  the  case  of  an  offender  against  military  law,  who  is 
punishable  exclusively  by  a  court-martial."  Under  existing  statutes  such 
arrests  may  be  made  by  a  military  officer,'  or  by  a  non-commissioned  officer 
or  private  duly  authorized  to  make  the  arrest,  and  by  "any  civil  officer 
having  authority  under  the  laws  of  the  United  States  or  of  any  State, 
Territory,  or  District  to  arrest  offenders,  to  summarily  arrest  a  deserter  from 
the  military  service  of  the  United  States  and  deliver  him  into  the  custody 
of  the  military  authority  of  the  general  government."  ' 

Delivery. — The  delivery  should  be  personal  and  manual  on  the  part  of 
the  civil  official,'  and  without  qualification  or  condition;  the  several  statutes 


inourrt'd  in  ninking,  in  good  faith,  llie  arrest  of  a  supposed  deserter  who  ^-as  in  fact  a 
dishonorably  discharged  soldier.     Dig.  J.  A.  Gen.,  349,  par.  'd~. 

'  Dig.  J.' A.  Gen.,  347,  par.  29.  thus  held  that  the  reward  was  not  payable  for  an 
arrest  made  on  the  soil  of  Me.xifo,  involving  a  violation  of  the  territorial  rights  of  that 
sovereignty.     An  act  done  in  violation  of  law  cannot  be  the  basis  of  a  legal  claim.     Ihid. 

«  Kurtz  vs.  Moffatt,  115  U.  S.,  487;  Trask  vs.  Payne,  43  Baiber,  569. 

s  Ibid.  Hutchiugs  vs.  Van  Bokkelen,  34  Maine,  126.  While  deserters  may  be 
arrested  by  officers  or  enlisted  men,  rewards  for  such  apprehension  are  never  payable  to 
military  persons. 

*  Sec.  3,  Act  of  October  1,  1890  (26  Stat,  at  Large,  648).  See,  also,  sec.  3,  Act  of 
June  16,  1890  {Ibid.,  157).  An  officer  of  the  customs,  empowered  by  law  to  make 
arrests  of  persons  violating  the  revenue  laws,  but  having  no  such  general  authority  as  is 
ordinarily  oossessed  by  peace  officers  "to  arrest  offenders"  (according  to  the  terms  of 
the  Act  of"  October  1,  1890,  authorizing  certain  civil  officials  to  arrest  deserters),  held 
not  entitled  to  be  paid  the  regulation  reward  for  the  apprehension,  etc.,  of  a  deserter 
from  the  Army.     Dig.  J.  A.  Gen.,  348,  par.  34. 

Held  that  a'  justice  of  the  peace  of  Idaho  was  not,  by  the  laws  of  that  State,  a  peace 
officer  or  authorized  to  arrest  offenders,  and  was  therefore  not  within  the  terms  of  the 
Act  of  October  1.  1890,  or  legally  entitled  to  be  paid  the  reward  for  the  arrest,  etc..  of  a 
deserter.  Such  justice  may  by  his  warrant  authorize  and  thus  cause  arrests,  but  actual 
arrest  pertains,  under  the'law's  of  the  State,  to  another  class— sheriffs,  constables,  city 
marshals,  and  policemen.  Similarly  held  in  regard  to  an  Indian  who  brought  in  a 
deserter  to  a  military  post  in  North 'Dakota,  he  having  no  authority  under  the  laws  of 
that  State  to  make  arrests.  But  held  that  a  member  of  the  Indian  police,  established 
under  the  reirulalions  of  the  Indian  iMWc.v.  was  a  civil  officer  having  authority  to  ^arrest 
offenders,  and  was  entitled  to  the  reward  for  the  arrest  of  a  deserter.     Ibul,  par.  35. 

'  Dig.  J.  A.  Gen.,  347,  par.  31.  Wiiere  a  soldier  who  had  deserted  was  .sentenced  to 
a  penitentiary  as  a  lun-so-ihief.  and  at  the  end  of  his  term  of  imprisonment  a  U.  S. 
marshal  caused  information  that  he  was  a  deserter  to  be  conveyed  to  the  commander  of 
a  neiirhborini:  military  post,  who  theretipon  had  him  arrested  and  brought  to  the  po.'^t, 
?ield  that  the  marsiiid  was  not  entitled  to  claim  the  reward.     Ihid. 

So  where  a  civil  official  merely  informed  a  captain  of  artillery  that  two  soldiers 
servinsi  in  Ids  battery  were  deserters  from  the  battalion  of  engineers,  held  that,  though 
such  information  was  correct,  the  official  was  not  entitled  to  the  reward  ;  and  that  the 
amount  of  tlie  same,  which  had  been  erroneously  paid  liim  on  the  certificate  of  the  cap- 
tain, should  be  charged  against  the  latter  under  paragraph  654.  Army  Regulations,  1895. 
Ibid. .  par.  32.  "  .  ,      ,  , 

Circular  No.  11  (H.  A).  1883,  declares  that  the  reward  shall  not  be  paid  where  the 
deserter,  at  the  time  of  arrest,  "is  servinir  in  some  other  branch  of  the  Army.  '  etc. 
Thus  held  that  the  reward  was  not  j^ayable  for  the  arrest  of  a  deserter  fromthe  cavalry 
who,  subsecjuently  to  his  desertion,  had  enlisted  in  an  infantry  regiment  in  which  he 
was  serving  at  the  d.ale  of  the  arrrst.     Ibid.,  par.  36. 

AVhere'a  civil  officiMl,  liavini:  made  an  arrest  of  a  deserter,  concealed  him  from  the 
military  authorities,  and  afterwards  permitted  or  connived  at  his  escape,  recommtnd^a 


426  MILITARY  LAW. 

authorizing  the  payment  of  rewards  contemplate  such  payment  only  in  cases 
of  complete  and  unconditional  delivery.  The  circumstances  attending  such 
delivery  must  be  such  as  to  negative  the  idea  of  fraud  or  collusion  on  the 
part  of  the  officer  making  the  arrest.' 

Where  the  deserter  was  not  arrested  by,  but  surrendered  himself  to,  the 
civil  otiicial,  who  in  good  faith  took  him  into  custody  and  securely  held  and 
duly  delivered  him,  it  has  been  held  that  there  had  been  a  substantial 
apprehension  for  the  purpose  of  reward,  and  that  the  reward  was  properly 
payable." 

Stoppage  of  Reward. — The  legal  liability  imposed  upon  the  soldier  by 
Army  Regulations,^  to  have  the  amount  of  the  award  stopped  against  his 
pay,  is  quite  independent  of  the  punishment  which  may  be  imposed  upon 
him  by  sentence  of  court-martial  on  conviction  of  the  desertion.  Such 
stoppage  is  incident  upon  the  conviction,^  and  need  not  be  directed  in  the 
sentence;  courts-martial  indeed  have  sometimes  assumed  to  impose  it  like 
an  ordinary  foffeiture  of  pay,  but  its  insertion  in  the  sentence  adds  nothing 
to  its  legal  effect.' 

Where  a  soldier  charged  with  desertion  is  acquitted,  or  where,  if  con- 
victed, his  conviction  is  disapproved  by  the  competent  reviewing  authority, 
he  cannot  legally  be  made  liable  for  the  amount  of  a  reward  paid  or  payable 
for  his  arrest  as  a  deserter,  since  in  such  cases  he  is  not  a  deserter  in  law." 

Where  a  soldier  for  whose  apprehension  as  a  supposed  deserter  the  legal 
reward  has  been  paid  is  subsequently  brought  to  trial  upon  a  charge  of 
desertion,  and  is  found  guilty,  not  of  desertion,  but  of  the  lesser  and  dis- 
tinct offense  of  absence  without  leave  only,  he  clearly  cannot  legally  be  held 
liable  for  the  reward  by  a  stoppage  of  the  amount  against  his  pay.  In  such 
ft  case,  the  instrumentality  resorted  to  by  the  United  States  for  determining 
the  nature  of  his  offense — the  court-martial — having  pronounced  that  it  was 
not  desertion,  the  government  is  bound  by  the  result,  and  to  visit  upon  him 
a  penalty  to  which  a  deserter  only  can  be  subject  would  be  grossly  arbitrary 
and  whollv  unauthorized.  Moreover  such  action  would  be  directly  at 
variance  with  the  terms  of  the  Army  Regulations,'  which  fix  such  liability 

that  the  Attorney-General  be  requested  to  instruct  the  proper  U  S  district  attorney  to 
initi:ite. proceedings  under  Sec.  5455,  Revised  Statutes.     Dig.  J   A.  Gen.,  345,  par.  17. 

'  The  reward  should  be  withheld  where  there  is  evidence  of  collusion  between  the 
allesed  deserter  and  the  civil  official.  Advised  that  a  suspicion  of  such  collusion  was 
properly  entertained  in  a  case  where  the  soldier,  after  an  absence  of  but  a  few  days, 
voluntarily  surrendered  himself,  at  or  near  the  post  of  delivery,  to  a  policennan.  who 
turned  him  over,  without  expense  or  difficulty,  to  the  military  authorities,  who  did  not 
treat  him  as  a  deserter,  but  caused  him  to  be  charged,  tried,  and  convicted  as  an  absentee 
■without  leave  only.     Ibid.,  p.  348,  par.  33. 

"■  Ibid.,  347,  par.  30.     See,  also,  Circular  No.  1,  H.  Q.  A.,  1886. 

»  Parasrraph  126,  Armv  Regulations  of  1895. 

«  16  Opinions  Att.-Gen.,  474:  Dig.  J.  A.  Gen.,  344,  par.  16. 

»  Dig.  .J.  A.  Gen.,  344,  par.  14. 

*  Ibid.,  par.  15. 

'  Par.  126,  A.  R.,  1895. 


THE  ARTICLES  OF   WAR.  427 

npoa  the  soldier  tried  in  tlie  event  only  of  his  conviction  of  desertion,' 
unless  indeed  the  .seuteiu-e  of  tlie  court  expressly  forfeits  the  iiniount.' 

Statutory  Consequences  of  Desertion. — Certain  statutory  consequences 
follow,  by  operation  of  law,  and  not  otherwise,  upon  convic/ion  of  the 
offense  of  desertion.  These  are:  (1)  the  obligation  to  make  good  the  time 
lost;'  (2)  forfeiture  of  the  rights  of  citizenship;'  (3)  incapacity  to  hold  ollice 
under  the  United  States; '  (4)  forfeiture  of  retained  pay  and  deposits.'  As 
in  the  case  of  absence  without  leave,  a  person  absent  in  desertion  forfeits  all 
pay  and  allowances  accruing  during  such  unauthorized  absence,  but  these 
forfeitures  are  incurred  on  account  of  the  violation  of  the  terms  of  the  con- 
tract of  enlistment,  not  by  operation  of  law,  but  because  they  have  not  been 
earned. 

The  forfeiture  of  the  rights  of  citizenship,  and  the  incapacity  to  hold 


'  16  Opiu.  Att.-Gen..  474. 

'  Dij;.  J.  A.  Gen.,  344,  pur.  IG.  A  deserter  is  not  cli!irg(';U)le,  under  par.  126,  A.  R. 
1895,  with  the  e.Kpeuses  of  trausportatioti  therein  specified,  if  his  conviction  has  heeu 
duly  disapproved;  such  disapproval  being  tautumouut  to  au  acquittal.  Ibid.,  349,  par. 
38. 

The  expense  of  the  transportation  of  a  convicted  deserter,  incurred  in  the  course  of  the 
execution  of  his  sentence,  is  not  clKUi,a'able  against  ihe  deserter  under  par.  126,  A.  R. 
189">,  but  must  be  borne  by  the  United  States.     Ibid.,  par.  39. 

'  Every  soldier  who  deserts  the  service  of  the  United  States  shall  be  liable  to  serve 
for  such  period  as  shall,  with  the  time  he  may  have  served  previous  to  his  desertion,  amount 
to  the  fidl  term  of  his  enlistment;  and  such  soldier  shall  be  tried  by  a  court-martial  and 
punished,  although  the  term  of  his  enlistment  may  have  elapsed  previous  to  his  being 
apprehended  and  tried.     48th  Art.  of  War. 

••  All  persons  who  deserted  the  military  or  naval  service  of  the  United  States  and  did 
not  return  thereto  or  report  themselves  to  a  provost- marshal  within  sixty  days  after  the 
issuance  of  tlie  |>roclamatiou  by  the  President  dated  the  eleventh  da\'  of  March,  eigh- 
teen hundred  aiid  sixty-five,  are  deemed  to  have  voluntarily  relincpiished  and  forfeited 
their  rights  of  citizenship,  as  well  as  their  right  to  become  citizens  ;  and  such  deserters 
shall  be  furever  incap.ible  of  holding  any  ollice  of  trust  or  profit  under  the  United  States, 
or  of  exercising  any  rigiits  of  citizens  thereof.     Section  1990,  Revised  Statutes. 

No  soldier  or  sailor,  however,  who  faithfully  served  according  to  his  enlistment  until 
the  nineteenth  day  of  April,  eighteen  hundred  and  sixty-tive,  and  who,  withom  proper 
authority  or  leave  lirst  obtained,  quit  his  command  or  refused  to  serve  after  that  date, 
shall  be  held  to  be  a  deserter  from  the  Army  or  Nav}';  but  this  section  shall  be  construed 
solely  as  a  removal  of  any  disabilit}'  such  soldier  or  sailor  may  have  incurred,  under  the 
preceding  section,  by  the  loss  of  citizenship  and  of  the  right  to  hold  office,  in  consequence 
of  his  desertion.     Section  1997,  ibid. 

^  Every  person  wiio  bereafter  de.serts  the  military  or  naval  service  of  the  United  States, 
or  who.  being  duly  enrolled,  departs  the  jurisdiction  of  the  district  in  which  he  is 
enrolled,  or  goes  beyond  the  limi;s  of  the  United  States,  with  intent  to  avoid  anv  draft 
into  the  military  or  nav.al  service  lawfully  ordered,  shall  be  liable  to  all  the  penalties  and 
forfeitures  of  section  nineteen  hundred  and  ninety-six.     Section  1999,  ibid. 

'  Any  enlisted  man  of  the  Army  may  deposit  his  savings,  in  sums  not  less  than  five 
dollars,  with  an}'  Army  paymaster,  who  sliall  furnish  him  a  deposit-book  in  which 
shall  be  entered  the  name  of  the  paymaster  and  of  the  soldier,  ami  the  amount,  dale, 
and  place  of  such  deposit.  The  money  so  deposited  shall  be  accounted  for  in  the  same 
manner  as  »!her  public  funds,  and  shall  pass  to  the  credit  of  the  ai>propriation  for  the 
pay  of  the  Army,  and  shall  not  be  subject  to  forfeiture  by  sentence  of  court-martial. 
but  tlialL  be  forfeited  by  desertion,  and  shall  not  be  permitted  to  be  paid  until  final  pav- 
ment  on  discharge,  or  to  the  heirs  or  representatives  of  a  deceased  soldier,  and  that  such 
deposit  be  exempt  from  liability  for  such  soldier's  debts:  provided  that  the  Government 
shall  be  liable  for  the  amount  deposited  to  the  person  so  depositing  the  same.  Seciiou 
1305,  Rev.  Slat.     See,  also.  Sec.  243S,  ibid. 


428  MILITARY  LAW. 

office  under  the  United  States,  imposed  upon  deserters  by  several  statutes,' 
can  be  incurred  only  upon,  and  as  incident  to,  a  cojividion  of  desertion  by 
a  general  court-martial,  duly  approved  by  competent  authority.'  These  dis- 
abilities, though  attacliing  to  every  such  conviction,  may  be  removed  by  an 
executive  pardon  of  the  offender." 

The  forfeiture  of  pay  and  allowances  prescribed  for  deserters  by  para- 
graphs 132,  1380,  and  1381  of  the  Army  Kegulations  of  1895  can  be 
imposed,  in  any  case,  only  upon  a  satisfactory  ascertainment  of  the  fact  of 
desertion.  The  same  may  indeed  legally  be  enforced  in  the  absence  of  an 
investigation  by  a  military  court,  as,  for  instance,  upon  the  restoration  of  a 
deserter  as  such  to  duty  without  trial,  by  the  order  of  competent  authority, 
under  paragraph  132  of  the  Army  Regulations  of  1895.  But  in  general,  in 
this  case  as  in  that  of  the  statutory  liability,  the  forfeiture  can  safely  be 
applied  only  upon  the  trial  and  conviction  by  court-martial  of  the  alleged 
deserter.* 

Approval  of  Conviction  Necessary. — The  conviction  must  of  course  be 
duly  approved;  if  it  be  disapproved,  the  soldier  cannot  legally  be  subjected 
to  the  forfeiture,  since  he  cannot  be  treated  as  a  deserter  in  law.  Nor  can 
he  be  subjected  to  the  forfeiture  if  he  is  acquitted,  though  the  finding  be  dis- 
approved by  the  reviewing  authority.  A  removal,  in  orders  of  the  War 
Department,  of  a  charge  of  desertion  entered  by  mistake  upon  the  rolls 
against  a  soldier  operates  to  relieve  him  of  any  and  all  stoppages  which  have 
been  charged  against  his  pay  account  for  forfeitures  authorized  by  the  Army 
Regulations  in  cases  of  deserters." 

A  deserter  cannot  legally  be  subjected  to  any  forfeiture  other  than  those 
prescribed  by  statute  or  army  regulation.  He  incurs,  for  example,  no  for- 
feiture of  his  own  personal  property '  as  a  consequence  of  desertion. 


'  Sections  1996  and  1998,  Revised  Statutes. 

'  Such  is  believed  to  liave  been  the  unifornn  course  of  ruling  in  the  civil  courts.  See 
Staters.  Symonds,  57  Maine,  148;  Holt  vs.  Holt,  59  id.,  464;  Severance  vs.  Healy,  50 
N.  Harap.,  448;  Gotcheus  rs.  Mattliewson,  61  N.  York,  430  (and  5  Lansing.  214;  58 
Barb.,  152)  ;  Iluber  vs.  Ileilly,  53  Pa.  St.,  112  ;  McCafferty  vs.  Guyer,  59  id.,  110;  Kurtz 
rs.  Moffitt,  115  U.  S.,  501.  As  to  the  liability  tomake  good  to  theUnited  States  the  time  lost 
hy  a  desertion,  also  incident  upon  a  conviction  of  this  offense,  see  48th  Article,  §§  1-5. 

«  Dig.  .1.  A.  Gen.,  842,  par.  8. 

*  Ibid.  ■.  pjir.  9.  The  restoration  of  a  deserter  to  duty  without  trial,  under  paragraph 
132,  Army  fiegulntions  of  1895,  does  not  operate  as  an  acquittal,  or  relieve  the  deserter 
from  ihe  forfeitures  of  pay  including  retained  pay)  incurred  under  paragraphs  1380  and 
1381  of  the  Army  Regulations  (1895).     Ibid.,  342,  par.  8. 

^  Ihid. 

'  Ibid.,  343,  par.  10.  So  where  certain  property  left  by  a  deserter  in  his  quarters  was 
Bold  hy  the  authorities  of  the  post  with  intent  to  devote  the  proceeds  to  the  post  fund, 
held  that  such  proceeds,  upon  the  subsequent  lurest  of  the  deserter,  should  be  paid  over 
to  him.  So  a  soldier  by  reason  of  having  deserted  does  not  forfeit  bounty  money  which 
has  been  paid  him  upon  enlistment  or  subsequently,  or  any  other  money  found  in  hi8 
possession  upon  his  arrest.  And  such  money  cannot  legally  be  withheld  from  him,  to 
be  appropriated  to  a  regimental  or  post  fund  or  any  other  purpose,  but,  being  his  own 
personal  property,  unaffected  by  his  offense,  must  be  left  in  his  possession.     Ibid. 


THE  ARTICLES  OF    WAR  -1^29 

Charges  of  Desertion. — It  has  been  seen  that  the  characteristic  intent  in 
the  otl'ense  oi  desertion  is  established  by  tlie  facts  attending  the  unauthorized 
absence  of  the  deserter  from  his  post  of  duty.  When  tliose  circumstances 
are  such  as  to  lead  to  the  belief  tliat  the  otfense  of  desertion  has  been  com- 
mitted, that  fact  is  noted  upon  the  records  of  the  command  to  which  the 
allejred  deserter  belonged,  and  such  entrv  constitutes  what  is  known  in  the 
military  service  as  -a.  charge  of  cleser lion.  The  entry  upon  tlie  reports  and 
returns  is  in  no  sense  a  military  charge  upon  which  the  accused  can  be 
l)rought  to  trial;  it  is  tlie  formal,  official  record  of  a  fact,  made  by  the  proper 
officer  in  obedience  to  law  and  regulations. 

Tlie  effects  of  such  a  charge,  however,  are  important,  since  it  operates  to 
suspend  during  its  existence  all  benefits  that  would  accrue  to  the  accused  as 
a  consequence  of  the  contractual  relation  established  by  him  at  his  enlist- 
ment into  the  military  service.  In  so  far  as  the  deserter  is  concerned,  it  is 
also  a  criminal  breach  of  the  enlistment  contract  lie  ceases  to  be  entitled 
to  pay,  allowances,  or  other  benefits  accruing  upon  enlistment,  his  time 
ceases  to  run,  all  payments  cease,  even  of  sums  due  at  the  date  of  his  deser- 
tion, and  he  becomes  liable  to  apprehension  and  trial  for  the  crime  of  deser- 
tion, under  the  47th  Article  of  AVar. 

The  charge  so  raised  can  only  be  completely  removed  or  negatived  by 
an  acquittal  after  a  trial  by  a  general  court-martial.  liy  several  statutes,' 
however,  the  Secretary  of  War  is  authorized  to  remove  the  charges  of 
desertion  standing  against  the  names  of  certain  soldiers  who  served  in  the 
War  of  the  Rebellion  or  the  War  with  Mexico.  The  action  of  the  War 
Department  under  these  statutes  operates  rather  to  do  away  with  the  conse- 
quences of  the  charge  than  to  blot  out  the  charge  itself,  which,  being  in  its 
nature  a  fact,  cannot  be  changed  by  legislation. 

A  pardon  does  not  operate  retroactively,  and  cannot,  therefore,  "  remove 
a  charge"  of  desertion.  It  does  not  wipe  out  the  fact  that  the  party  did 
desert,  nor  can  it  make  the  record  say  that  he  did  not  desert.  It  cannot 
change  facts  of  history.  Nor  can  a  pardon  restore  amounts  which  have  been 
actually  forfeited  by  desertion.' 

The  restoration  of  a  deserter  to  duty  without  trial  '  does  not  operate  as 
an  acquittal,  or  relieve  the  deserter  from  the  forfeitures  of  pay  (including 
retained  pay)  incurred  by  operation  of  law." 

Article  48.  Erer'j  soldier  who  deserts  the  service  of  the  United  States 
shall  be  liable  to  serve  for  such  period  as  shall,  with  the  time  he  may  have 
served  previous  to  his  desertion,  amount  to  the  full  term  of  his  etilistment ; 

'  Acts  of  Adsrnst  7,  1882.  ('22  Stat.  M  Larijc.  847.)  .Tulv  5,  1884,  (23  ibid  ,  119.)  May 
17.  1886.  (24  ibid.,  -M.)  Miirch  2,  1889.  (25  ibid..  809,)  March  2.  1S91,  (26  ibid..  )^94.)  July 
27,  1892,  (27  ibid,  278,)  and  March  2,  1896  (28  ibid.,  814).  See,  also,  Dig.  J.  A.  Gen., 
342,  par.  9. 

*  Disr.  J    A.  Gen.,  3.')1,  par.  47. 

'  Par.  132.  Army  Heffulations  of  1895. 

*  Dig.  J.  A.  Gen.,  351.  par.  48 ;  paragraphs  1380  and  1381,  A.  R.  1895. 


430  MiiJiAnr  LA  II. 

and  such  soldier  shall  be  tried  hi/  a  court -iiutrtial  and  punished,  although  the 
term  of  his  enlistment  may  have  elapsed  precions  to  his  being  apprehended 
and  tried. 

This  Article,  unlike  those  which  liave  ulready  been  discussed,  was  neither 
borrowed  nor  adapted  from  a  corresjDonding  provision  of  the  British  Military 
Code.  It  appeared  in  statutory  form  in  18U-2,'  but  was  repeated  in  1812  in 
connection  with  an  enactment  authorizing  an  increase  of  the  military  estab- 
lishment, made  necessary  by  the  existence  of  the  war  with  England. 

The  liability  to  make  good  the  time  lost  by  his  unauthorized  absence 
attaches  to  a  deserter,  as  such,  whatever  his  status  or  the  disposition  of  his 
case.  This  liability  is  quite  distinct  from  the  liability  to  punishment.  It 
results  from  the  violation  of  his  contract,  and  this  contract  is  subject  to  the 
law  of  specific  performance.  It  attaches  although  he  may  not  have  been 
convicted  of  the  offense,  although  the  statute  of  limitation  may  have  taken 
effect  in  his  case  (whether  or  not  sustained  as  a  plea  on  a  trial  by  court- 
martial),  although  he  may  have  been  pardoned,  and  although  he  may  have 
been  restored  to  duty  without  trial.  The  liability  does  not  attach,  however, 
to  mere  absentees  without  leave.'' 

As  a  conviction  is  not  essential  or  material  to  the  enforcement  of  the 
obligation  enjoined  by  this  Article,  so  if  there  be  a  trial  and  conviction  it  is 
not  essential  or  material  that  the  completing  of  the  term  of  service  should 
be  specifically  prescribed  as  a  penalty  in  the  sentence.  And  so  a  deserter 
accepting  a  restoration  to  duty  without  trial  is  liable  to  be  required  to  make 
good  the  time  lost  by  his  desertion  though  the  order  restoring  him  makes  no 
mention  of  such  a  condition.' 

'  See  Sec.  18,  Act  of  Marcli  16,  1803,  (2  Stat,  at  Lar2:e,  136,)  Act  of  January  11, 1812, 
(2  Stat,  at  Large,  673,)  and  January  29,  1S13.  (2  ihid.,  796). 

^  Dig.  J.  ATGen.,  43  par.  8.  The  liability  to  make  good  to  the  United  States  the 
time  lost  by  desertion,  enjoined  by  the  first  clause  of  this  Article,  is  independent  of  any 
punishment  which  may  \m  imposed  by  a  court-martial,  on  conviction  of  the  offense  ;  it 
need  not,  therefore,  be  adjudged  or  mentioned  in  terms  in  a  sentence.*  If  the  convic- 
tion is  disapproved,  the  JegJil  status  of  the  accused  is  the  same  as  if  lie  had  been 
acquitted,  and  the  obligation  of  additional  service  is  of  course  not  incurred.  Ibid.,  42, 
par.  1. 

Where  a  deserter  was  sentenced  to  imprisonment  for  the  "balance  of  his  term,"  held 
that  lie  was  not  absolved  from  the  obligation  to  make  good  time  lost ;  these  words  refer- 
ring to  the  balance  of  the  term  of  his  original  enlistment.     Ihid.,  par.  2. 

The  time  passed  by  a  deserter  in  confinement  under  sentence  cannot  be  computed  as 
a  part  of  the  period  required  by  the  Article  to  be  made  good  to  the  United  States,  such 
lime  not  being  a  time  of  military  service,  but  of  punishment.  Nor  can  the  period  of 
confinement  be  credited  where  the  sentence  is  remitted  before  it  is  fully  executed.  So 
time  passed  by  the  deserter  in  arrest  or  confinement  (or  in  hospital)  while  waiting  trial 
or  action  upon  his  sentence  cannot  be  so  computed.     Ibid.,  43,  ])ar.  3. 

'  Ibid.,  44,  par.  9.  The  enforcement  of  the  liability,  where  enforeed  at  all,  is  gener- 
ally postponed  till  after  the  execution  of  the  punishment  (if  any)  imposed  upon  the 
deserter  by  his  sentence.  A  deserter  may  still  be  required  to  make  good  the  time  included 
in  his  unauthorized  absence  from  the  service,  although  his  term  of  enlistment  has  expired 

*  Until  a  period  so  late  as  1843  the  opposite  view  prevailed,  and  the  statute  was  regarded  as  creatine: 
a  liability  which  could  only  be  made  operative  by  the  sentence  of  a  court-martial.  See  G.  O.  45,  A.  G. 
<,)..  1843. 


THE  ARTICLES   OF    WAR.  431 

The  United  States  may  waive  the  liability  imposed  by  the  first  clause  of 
the  Article.  It  is  in  fact  waived  where  the  deserter,  without  being  required 
to  perform  the  service,  is  discharged  by  one  of  the  othcials  authorized  by 
Article  4  to  discharge  soldiers.  So  it  is  waived  where  the  soldier  is  adjudged 
to  be  dishonorably  discharged  by  sentence  of  court-martial,  and  this  punish- 
ment is  duly  approved  and  thereupon  executed.' 

The  provision  of  the  second  clause  of  this  Article  applies  only  to  deser- 
tions committed  while  the  soldier  is  duly  in  the  service  and  before  his  term 
of  enlistment  has  expired.  A  deserter  who  has  been  duly  discharged  from 
the  service  of  course  does  not  remain  amenable  to  trial  under  this  Article." 

The  lial)ility  to  trial  and  punishment  imposed  by  the  second  clause  of 
the  Article  is  suh)ject  to  the  limitation  of  prosecutions  prescribed  by  Article 
103.' 

Akticle  49.  Any  officer  who,  having  tendered  his  resignation,  quits  his 
post  or  proper  duties  icithout  leave,  and  with  intent  to  I'ernain  permanently 
absent  therefrom,  prior  to  due  notice  of  the  accepta7ice  of  the  same,  shall  be 
deemed  and  piiiiished  as  a  deserter. 

This  requirement,  like  that  contained  in  the  preceding  Article,  is  new  to 
the  United  States  service.  It  first  appeared  in  statutory  form  as  Section  2 
of  the  Act  of  August  5,  18G1,*  and  in  its  present  form  as  Xo.  49  of  the 
Articles  of  1874. 

To  constitute  an  offense  of  constructive  desertion  under  this  Article,  the 
tender  of  resignation  and  the  subsequent  dej^arture  of  the  officer  from  his 
command  must  be  established;  the  latter  act  being  combined  "^ith  the 
intent  of  remaining  "permanently  absent  therefrom."  This  would  be 
shown,  as  is  the  case  of  the  intent  in  desertion,  by  the  circumstances  attend- 
ing the  departure  of  the  officer  and  by  his  subsequent  conduct.  When  these 
elements  have  been  established  a  case  of  constructive  desertion  exists,  to 
which  the  penalties  consequent  upon  conviction  of  desertion  attach  by 
operation  of  law. 

Article  50.  No  non-commissioned  officer  or  soldier  shall  enlist  himself 
in  any  other  regiment,  troop,  or  company  without  a  regular  discharge  from 
the  regiment,  troop,  or  company  in  which  he  last  served,  on  a  penalty  of  being 
reputed  a  deserter,  and  suffering  accordingly.  And  in  case  any  officer  shall 
Jctiowingly  receive  and  entertain  such  non-comm issioned  officer  or  soldier,  or 
shall  not,  after  his  being  discovered  to  be  a  deserter,  immediately  confine  him 
and  give  notice  thereof  to  the  corps  in  which  he  last  served,  the  said  officer 
shall,  by  a  court-martial,  be  cashiered. 


pending  a  terra  of  confinement  adjiulged  liim  by  court-martial  on  conviction  of  his 
offense,  provided  be  has  not  been  discharged.     Dig.  J.  A.  <<en.,  43,  par.  4. 

'  Ihid.,  par.  5. 

'  Ibid.,  pur.  6. 

»  Ibid. .  par.  7. 

*  Section  2,  Act  of  August  5,  1861  (12  Stat,  at  Large,  316). 


432  MILITAIiY  LAW. 

Although  this  requirement  had  formed  a  part  of  the  English  Articles  of 
TVar  for  a  number  of  years,  it  was  not  formally  embodied  in  the  Mutiny 
Act  until  1T83.  It  will  be  found  as  Article  :»,  Section  (J,  of  the  British 
Code  of  1T74:,  as  Article  o,  Section  5,  of  the  American  Articles  of  1776,  and 
as  Xo.  -Vl  of  the  Articles  of  180G. 

This  Article  in  its  first  clause  does  not  create  a  specific  offense,  or  one 
distinct  from  the  desertion  made  punishable  in  the  47th  Article,  but  declares 
in  effect  that  a  soldier  who  abandons  his  regiment  shall  be  deemed  none  the 
less  a  deserter  although  he  may  forthwith  re-enlist  in  a  new  regiment.  It 
does  not  render  the  act  of  re-enlistment  a  desertion,  but  simply  makes  the 
re-enlistment,  under  the  circumstances  indicated,  jyrima  facie  evidence  of  a 
desertion  from  the  previous  enlistment  from  which  the  soldier  has  not  been 
discharged,  or,  more  accurately,  evidence  of  an  intent  not  to  return  to  the 
same.'  The  object  of  the  provision,  as  it  originally  appears  in  the  British 
Code,  apparently  was  to  preclude  the  notion,  that  might  otherwise  have  been 
entertained,  that  a  soldier  would  be  excused  from  repudiating  or  departing 
from  his  original  contract  of  enlistment,  provided  he  presently  renewed  his 
obligation  in  a  different  portion  of  the  military  force.' 

The  second  clause  of  the  Article  gives  an  added  sanction  to  the  first,  by 
making  it  an  offense,  highly  penal  in  character,  "  in  case  any  officer  shall 
knowingly  receive  and  entertain  such  non-commissioned  officer  or  soldier,  or 
shall  not,  after  his  being  discovered  to  be  a  deserter,  immediately  confine 
him  and  give  notice  thereof  to  the  corps  in  which  he  last  served,  the  said 
officer  shall  by  a  court-martial  be  cashiered."  The  gravity  of  the  offense  is 
thus  seen  to  be  measured  by  the  mandatory  sentence  of  cashiering  which  a 
court-martial  is  required  to  impose  upon  an  officer  found  guilty  of  having 
received  or  entertained  a  deserter,  or,  knowing  a  soldier  to  be  such,  in  not 
causing  him  to  be  immediately  confined,  and  notice  given  to  the  corps  in 
which  he  last  served.' 

Article  51.  Auii  ofirer  or  soldier  who  advises  or  persuades  any  other 
officer  or  soldier  to  desert  the  service  of  the  United  States  shall,  in  time  of 
war.  suffer  death,  or  mirh  other  pvnishnmit  as  a  court-martial  may  direct ; 


'  Di.ir.  .T.  A  Get..,  44,  par.  1.  See  Gen.  Court-martial  Order  No.  129,  Department  of 
the  Mi.ssoiiri,  1872  ;   do.  77,  idem,  1874.  .  .  „     ^         v,   j-  j 

»  Ihid  ,  45.  par.  1.  See.  also,  Samuel,  330,  331.  The  provision  was  first  embodied 
in  the  Mtitinv  Act  in  1783.  .  ,  ...  , 

IIHd  that  an  enlisted  marine,  who  abandoned  the  marine  corps  witliout  a  discharge  and 
enli.sted  in  the  Armv,  fo.ild  not  be  "  reputed  a  deserter"  according  to  tlie  terms  ot  tliis 
Article  :  but  odvitted  that  he  turned  over  to  the  commandant  of  that  corps  for  the  proper 
disposition  and  action.     Dii;   .1.  A   Gen.,  45,  par.  2.  ^   .  ,,  -a    ^  ,i    ^  \ 

Where  a  soldier  enlisted  in  a  certiun  regiment  after  being  officially  notited  that  he 
was  duly  discharged  from  a  previous  enlistment,  but  without  having  received  the  written 
certificate  and  evidence  of  his  di.schartre,  which  by  mistake  or  accident  had   not  peea 
delivered  to  him  :is  reciuired  bv  Article  4,  held  that  he  could  not  properly  be      reputea 
or  charir<'d  as  a  deserter.     Ibid.,  par.  3. 

»  Samuel,  331,  332. 


THE  ARTICLES  OF   WAR.  433 

and  in  time  of  peace,  ajiy  punishment,  excejHitig  death,  which  a  court-martial 
may  direct. 

This  Article  is  in  substance  a  re-enactment  of  Article  4,  Section  0,  of 
the  IJritish  Code  of  17T4,  Article  4,  Section  0,  of  tiie  American  Articles  of 
1776,  and  No.  23  of  the  Articles  of  180G,  to  which  the  requirement  of  the 
Act  of  Mav  '-i'.t,  1830,'  has  been  added,  prohibiting  the  imposition  of  the 
death  penalty  for  the  offense  of  desertion  when  committed  in  lime  of  peace. 

Tiie  acts  described,  which  in  this  Article  are  made  substantive  military 
offenses,  are  such  in  fact  as  to  confer  upon  those  committing  them  the 
character  of  accessories  before  the  fact  to  the  crime  of  desertion.  By  the 
terms  of  the  original  Article  it  was  not  necessary  that  there  should  have 
been  an  actual  desertion  to  constitute  the  offense  contem])latod;  it  was  suffi- 
cient, without  looking  to  the  consequence  (which  depended  not  on  the  will 
of  the  person  counselling  the  act),  that  the  advice  be  given  or  the  persuasion 
used;  for  in  that  is  the  entire  offense,  so  far  as  it  can  connect  itself  with  the 
person  giving  the  counsel."  In  our  own  service,  however,  the  provision  has 
been  more  strictly  construed,  and  it  has  been  held  tliat  to  constitute  the 
offense  of  advising  to  desert  it  is  not  essential  that  there  should  have  been 
an  actual  desertion  by  the  party  advised.  It  has  been  held  otherwise,  liow- 
ever,  as  to  the  offense  of  persuading  to  desert:  to  complete  this  offense  the 
persuasion  should  have  induced  the  act."* 

Article  52.  It  is  earnestly  recojnmended  to  all  olficcrv  and  soldiers  dili- 
gently to   attend   divine   service.      Any  officer  toho   behaves  indecently  or 

»  Act  of  May  29,  1830  (4  St;it.  at  Larse,  418). 

«  Samuel,  3:s9. 

'  DiiT.  'I.  A  Gen.,  4"),  ])ar.  1.  A  declaration  made  by  one  soldier  to  auolber  of  a 
willingness  Id  dtsert  with  him  in  case  he  should  dcoide  to  desert,  held  not  properly  an 
advising  to  desert,  iu  the  sense  of  this  Article.     Ibid.,  45,  par.  1. 

Section  545."),  Revised  Statutes,  contains  the  requirement  that  "every  person  who 
entices  or  procures,  or  attempts  or  endeavors  to  entice  or  jirocure.  any  soldier  in'  the 
nuiitary  service  of  the  Uidted  States,  or  who  has  been  recruited  for  such  service,  to 
desert  therefrom,  or  who  aids  any  such  soldier  in  deserting  or  attempting  to  desert  from 
such  service,  or  who  haihors,  Conceals,  protects,  or  assists  any  such  soldier  who  may 
have  (ieserted  from  such  service,  knowing  him  to  have  deserted  therefrom,  or  wlio 
refuses  to  give  up  and  deliver  such  soldier  on  the  demand  of  any  offic  r  authorized  to 
receive  idin,  sh.nll  be  puidsli,  d  by  imprisonment  not  less  than  si.\  months  nor  more  than 
two  years,  and  by  a  fine  not  e.xceediiiLr  live  hundred  dollars;  and  every  person  who  en- 
tices or  procures,  or  attempts  or  endeavors  to  entice  or  procure,  any  seaman  or  other 
person  in  the  naval  service  of  the  United  States,  or  who  has  been  recruited  for  such  ser- 
vice, to  desert  therefrom,  or  who  aids  any  such  seaman  or  other  person  in  deserting  or 
in  attempting  to  desert  from  such  service,  or  who  harbors,  conceals,  protects,  or  assists 
any  such  siaman  or  other  person  who  may  have  deserted  from  such  service,  knowing 
bim  to  have  deserted  therefrom,  or  wlio  refu.ses  to  give  up  and  deliver  such  sailor  or 
olhfr  person  on  the  liemand  of  any  otlicer  authorized  to  receive  him.  shall  be  punished 
by  imprisonment  not  h  ss  than  si.\  months  nor  more  than  three  years,  and  by  a  tine  of 
not  more  than  two  thousand  dollars,  to  be  enforced  in  any  court  of  the  United  States 
having  jurisdiction."  * 


*  Wtiere  a  civil  ofRc-ial,  having:  made  an  arrest  of  a  deserter,  concealed  him  from  the  military  au- 
thorities, and  afterwards  permitted  or  dinnived  at  liis  escape,  reeomiiiended  that  the  Attorney  Gen- 
eral he  requested  to  instruct  the  proper  United  States  district-attorney  to  initiate  proceedings  under 
Section  5455,  Revised  Statutes.     Di^.  Opin.  J.  A.  Gen.,  345,  par.  17. 


434  MILITARY  LAW. 

irreverently  at  any  place  of  divine  ivorship  shall  he  brought  before  a  general 
court-martial,  there  to  be  publicly  afid  severely  reprimanded  by  the  president 
thereof.  Any  soldier  who  so  offends  shall,  for  his  first  offense,  forfeit  one 
sixth  of  a  dollar;  for  each  further  offense  he  shall  forfeit  a  like  sum,  and 
shall  be  confined  ttcenly-four  hours.  The  money  so  forfeited  shall  be  deducted 
from  his  next  pay,  and  shall  be  applied,  by  the  captain  or  senior  officer  of  his 
troop,  battery,  or  company,  to  the  use  of  the  sick  soldiers  of  the  same. 

The  first  provision  respecting  divine  service,  in  the  Articles  of  1G62- 
1663,  required  chaplains  to  "  read  the  Common  Prayers  of  the  Church  of 
England  to  the  Soldiers  respectively  under  their  charge,  and  to  preach  to 
them  as  often  as  with  convenience  shall  be  thought  fit;  and  if  any  neglect 
his  duty  herein,  he  to  be  punished  at  discretion;  and  every  Officer  or 
Soldier  absent  from  prayers  shall,  for  every  absence,  lose  a  day's  pay  to  His 
Majesty."  The  direction  for  daily  service  was  not  of  long  continuance,  for 
the  Articles  of  1673  made  mention  only  of  Sundays  and  of  public  festivals 
and  fasts.  The  requirement  assumed  its  present  form  in  the  Articles  of 
1717  and  appears  as  Article  1,  Section  1,  of  the  British  Code  of  1774,  as 
Article  2,  Section  1,  of  the  American  Articles  of  1776;  the  jjositive  command 
of  the  British  Article  being  modified  in  form  to  an  earnest  recommendation, 
in  which  shape  it  appears  as  No.  2  of  the  Articles  of  1806.  The  several 
codes  prior  to  and  including  that  of  1806  contained  a  requirement  impos- 
ing a  special  penalty  upon  chaplains  for  a  failure  to  perform  their  duties  by 
reason  of  unauthorized  absence.  As  chaplains  were  placed  upon  the  footing 
of  commissioned  officers  of  the  Army,  by  the  Act  of  April  9,  1864,'  they 
became  subject  to  the  same  penalties  for  absence  without  leave  as  applied  to 
other  commissioned  officers,  and  this  provision  was  therefore  omitted  from 
the  Articles  of  War  in  the  revision  of  1874. 

Article  53.  Any  officer  who  uses  any  profane  oath  or  execration  shall, 
for  each  offmse,  forfeit  and  pay  one  dollar.  Any  soldier  luho  so  offends 
shall  i7icicr  the  penalties  provided  in  the  preceding  article  ;  and  all  moneys 
forfeited  for  such  offenses  shall  be  applied  as  therein  provided. 

Not  a  little  space  is  devoted  in  the  earlier  military  codes  to  provisions 
calculated  to  insure  respect  for  the  Articles  of  Faith  of  the  Church  of 
England.  By  the  middle  of  the  eighteenth  century  these  clauses  had  been 
considerably  reduced  in  number  and  severity;  such  as  remained,  however, 
were  adopted  by  Congress  in  the  Articles  of  1776.  Mere  profanity,  as  dis- 
tinguished from  blasphemy,  and  profanation  of  the  Articles  of  Faith,  was 
forbidden  in  Article  3  of  the  Prince  Rupert  Code  in  the  following  terms: 
"  whosoever  shall  use  any  unlawful  oath  or  Execration  (whether  Officer  or 
Souldier),  shall  incur  the  penalty  as  exprest  in  the  1st  Article"  (enjoining 
attendance  upon  divine  service). "     This  provision  is  repeated  in  the  Articles 

'  13  Stat,  at  Large,  46. 


THE  ARTICLES  OF   WAR.  435 

of  James  II.,  and  appears  as  Article  2,  Section  1,  of  the  British  Code  of  1774, 
and  as  Article  o,  Section  1,  of  the  American  Articles  of  1776,  in  which,  for 
the  first  time,  was  embodied  the  iHifjuirement  which  is  contained  in  the  first 
clause  of  the  present  Article  imposiii":,'  a  fine  of  one  dollar  for  each  offense, 
when  committed  by  a  commissioned  ollicer.  Tiie  provision  was  reenacted 
in  the  Articles  of  18(J<J  and  1874  without  substantial  change. 

Article  54.  Kwrn  officer  commanding  in  quarters,  garrison,  or  on  the 
viarcit  >i]tall  keep  good  order,  and,  to  the  utmost  of  his  poioer,  redress  all 
abuses  or  disorders  which  mag  be  committed  bg  ang  officer  or  soldier  under 
his  command  J  and  if,  upon  complaint  made  to  him  of  officers  or  soldiers 
beatiyig  or  otherwise  ill-treating  ang  person,  disturbing  fairs  or  markets^  or 
committing  ang  kind  of  riot,  to  the  disquieting  of  the  citizens  of  the  United 
States,  he  refuses  or  omits  to  see  justice  done  to  the  offender,  and  reparation 
made  to  the  part g  injured,  so  far  as  part  of  the  offender's  pag  shall  go  toward 
such  reparation,  he  shall  be  dismissed  from  the  service,  or  otherwise  punished, 
as  a  court-martial  mag  direct. 

This  provision  appears  as  Article  2,  Section  9,  of  the  British  Code  of 
1774,  as  Article  1,  Section  9,  of  the  American  Articles  of  1776,  and  as  Xo. 
32  of  the  Articles  of  1806. 

"  It  is  at  all  times  most  desirable  that  an  army  whilst  marching  through 
a  foreign  territory,  and  much  more  through  its  own  country  or  that  of  an 
ally,  should  conciliate  the  people  by  its  peaceable  demeanor  and  render  the 
progress  through  it  as  little  inconvenient  or  prejudicial  to  tiie  common 
inhabitants  as  mav  be.  The  same  is  also  to  be  desired  of  its  conduct  during 
its  temporary  sojournment  in  quarters  or  in  garrison."  ' 

This  Article  is  directory  upon  the  commanding  officers  of  military  posts 
or  troops  in  the  field  in  two  particulars:  First,  in  requiring  justice  to  be 
done  to  the  offender.  Tliis  duty  is  performed  by  bringing  the  accused  to 
trial  by  court-martial  under  appropriate  charges;  Second,  in  requiring 
reparation  to  be  made  to  the  party  injured,  to  the  extent  of  the  offender's 
pay.  This  is  a  summary  proceeding  which  is  regulated  in  a  proper  case  by 
the  terms  of  General  Orders  of  the  War  Department. 

Procedure. — -The  procedure  under  this  Article"  is  as  follows:  The  citizen 
aggrieved  tenders  a  "  complaint  "  under  oath,  charging  the  injury  against  a 
particular  soldier  or  soldiers,  described  by  name  (if  known),  regiment,  etc., 
and  accompanied  by  evidence  of  the  injury,  and  of  tlie  instrumentality  of 
the  person  or  persons  accused.  If  such  evidence  be  satisfactory,  the  com- 
manding officer  has  the  damages  assessed  by  a  board,  and  makes  order  for 
such  stoppage  of  pay  as  will  be  sufficient  for  the  "  reparation  "  enjoined  by 
the  Article.  The  commander  must  have  a  proper  case  presented  to  him:  he 
cannot  legally  proceed  of  his  own  motion.' 

'  Samuel,  539.  "  See  General  Orders  No.  35,  War  Department,  of  1868. 

*  Disz;.  .J.  A.  Gen.,  47,  pir.  7.     Tiie  p:iy  of  tlio  offender  or  offenders  cun  be  resorted  to 


436  MILITARY  LAW. 

The  stoppage  contemplated  is  quite  distinct  from  a  punishment  by  fine, 
and  it  cannot  affect  the  question  of  the  summary  reparation  authorized  by 
the  Article,  that  the  offender  or  offenders  may  have  already  been  tried  for 
the  offense  and  sentenced  to  forfeiture  of  pay.  In  such  a  case,  indeed,  the 
forfeiture,  as  to  its  execution,  would  properly  take  precedence  of  the 
stoppage.  On  the  other  hand,  where  the  stoi)page  is  first  duly  ordered 
under  the  Article,  it  has  precedence  over  a  forfeiture  subsequently  adjudged 
for  the  offense.' 

Article  55.  All  officers  and  soldiers  are  to  hcliave  themselves  orderly  in 
quarters  and  on  the  inarch  ;  and  tvhoever  commits  any  luaste  or  spoil,  either 
in  loalks  or  trees,  parks,  warrens,  fish-ponds,  houses,  gardens,  yrainfields, 
inclosures,  or  meadows,  or  maliciously  destroys  any  property  whatsoever 
belonging  to  inhabitants  of  the  United  States,  {unless  by  order  of  a  general 
officer  commanding  a  separate  army  in  the  field,)  shall,  besides  such  penalties 
as  he  may  be  liable  to  by  law,  be  punished  as  a  court-martial  may  direct. 

This  requirement  appears  as  Article  16,  Section  14,  of  the  British  Code 
of  1774,  as  Article  16,  Section  13,  of  the  American  Articles  of  1776,  and  as 
No.  54  of  the  Articles  of  1806.  The  reason  assigned  for  the  excepting  clause 
in  the  British  Articles  of  1774,  and  in  the  corresponding  provision  of  the 
American  Articles  of  1776,  and  which  is  declared  in  the  former  "  to  annoy 
rebels  or  other  enemies  in  arms  against  Us,"  and  in  the  latter  "to  annoy 

O'lly  for  the  purpose  of  the  "  repantion."  A  military  coininaiuler  can  have  no  author- 
ity to  aid  a  f lu-thcr  amount  of  stoppage  by  way  of  punishment.  Dig.  J.  A.  Gen.,  47, 
par.  5 

'  Ibid.,  46.  par.  2.  Hdd  tliat,  as  an  agency  for  assessing  tlie  amount  of  the  damage, 
a  court- martial  cotild  not  properly  be  substituted  for  the  board,  diiected  by  G.  O.  35, 
Hdiirs.  of  Army.  1868,  to  be  convened  for  such  i)ur|)ose.     Jbul.,  par.  6. 

It  does  not  affect  the  question  of  reparation  under  the  Article  that  the  offender  or 
offenders  may  be  criminally  liable  for  the  injury  committed,  or  may  have  been  punished 
therefor  by  the  civil  authorities      Ibid.,  par.  3. 

ILld  that  the  remedial  provision  of  this  Article  could  not  bo  enforced  in  favor  of 
military  per-on.s,  or  in  favor  of  the  United  States,  oi- to  indemnify  parties  for  property 
.'<tolenov  embezzled,     lliid.,  par.    4. 

Where  proof  was  duly  made  under  this  Article  of  injury  done  by  some  persons  of  a 
command,  i)ut  the  active  perpetrators  could  not  upon  investigation  be  determined,  and 
it  appeared  that  the  entire  command  was  present  and  implicated,  held  that  the  stoppage 
migiit  legally  be  made  against  all  the  individuals  present.     /^«?..  par.  8. 

In  a  few  cases  a  stoppage  of  the  p.ay  of  tn  entire  regiment  for  damage  lo  private 
property  co:nmitted  by  it.s  members  has  been  sanctioned  as  authorized  under  the 
general  remedial  jtrovisions  of  this  Article.      Ibid.,  46,  par,  1. 

Widle  this  Article  would  certainly  ai)pear  to  contemjilate  the  making  of  reparation 
for  injuries  done  to  the  remons  of  citizens  rather  than  for  injuries  done  to  their  property, 
yet  (ii'lvised.  in  view  of  the  pieccdents  that  it  might  probablv  be  regarded  as  within  the 
equity  of  the  Article  lo  indemnify  a  citizen  Un-  wanton  injury  done  to  \\h  property  by  a 
s  )ldier  or  S)ldiers.  bv  means  of  a  stoppage  against  his  or  their  i)ay,  summarily  ordered 
upon  invcstigatinn  by  the  comm.anding  oflicir.*    Ibid. 


*  See  also.  G,  O.  3,"),  Hdqrs.  of  Army,  ISfift,  construing  this  Article,  and  prescriV)ing  the  proceedinp 
iiiider  it.  reparation  for  injury  to  j/ropert  i  as  well  as  pt'imni  lieiiiK  authorized.  The  Article,  however, 
is  antiquated  in  form  and  indefinite  and  incomplete  in  iis  provisions,  and  calls  for  repeal  oi-  amend- 
ment Forthe  principal  ca«es  in  wlii<-li  it  lias  hfen  ap|>lied  in  our  pradice,  the  student  is  referred  to  O. 
O  4  r)"i>t  of  the  Ohio,  1863:  do,  YS-X  Dent,  of  tlie  Gulf,  18G4:  do.  Ifil.  Defit.  of  Washington,  18fi5;  do  o9 
id  .  'l8«fi-.  do.  74.  Dept.  of  Arkansas.  lHt;.5;  do.  48,  55,  Dept.  of  Louisiana,  18U6;  do.  6,  Dept.  of  the  Cum- 
b^rl md.  18(17:  do.  10,  Dept.  of  the  South,  1870. 


rilE  ARTICLES   OF    WAR.  437 

rebels  or  other  enemies  in  arms  against  said  States,"  is  omitted  from  the 
re-enactments  of  iSOd  and  1874. 

Tlie  acts  of  trespass,  etf.,  indicated  in  tliis  Article  are  made  punishable 
as  special  l)reaches  of  disci])line,  and  less  for  the  protection  of  citizens  than 
for  the  maintenance  of  the  orderly  behavior  and  inoralc,  of  the  military  force.' 

The  55th  Article  makes  an  exception  in  i-espect  to  property  destroyed 
"by  order  of  a  general  officer  commanding  a  separate  army  in  the  lield." 
'J'his  is  believed  to  be  the  only  case  in  which,  by  a  formal  enactment  of 
Congress,  obedience  to  the  orders  of  a  superior  can  be  pleaded  in  bar  to  an 
action  for  damages  growing  out  of  the  destruction  of  the  private  property  of 
an  inhabitant  of  the  United  States  by  an  ofhcer  or  soldier.  The  exceptincr 
clause  o])erates  to  transfer  the  res2)onsibility  from  the  person  by  whom  the 
destruction  was  committed  to  the  ofllicer  ordering  the  particular  property 
to  be  destroyed. 

Article  56.  Any  officer  or  soldier  icJio  do^'s  riolence  to  any  person  bring- 
ing provisions  or  other  necessaries  to  the  camp,  garrison,  or  quarters  of  the 
forces  of  the  United  States  in  foreign  parts,  shall  suffer  death,  or  siich  other 
punishment  as  a  ronrl-martial  may  direct. 

As  it  is  impracticable  for  armies  to  carry  along  with  them  the  necessary 
provisions  for  their  consumption  during  a  lengthened  campaign,  and  as  they 
must  in  a  great  measure  depend  for  their  supply  on  the  countries  through 
which  they  pass,  be  they  friendly  or  hostile,  it  is  at  all  times  for  the  interest 
of  such  armies,  and  has  therefore  been  the  peculiar  care  of  the  generals  com- 
manding them,  to  encourage  and  protect  countrymen  and  others  in  bring- 
ing provisions  to  the  camp.  The  military  regulations  have  been  uniform 
at  all  times  in  awarding  the  extreme  punishment  of  death  to  soldiers  who 
should  do  any  violence  to  the  persons  of  those  who  furnish  the  army  with 
provisions,  or  to  their  goods  or  merchandise.^  Such  conduct  was  forbidden 
under  penalty  of  death  by  the  war  statutes  of  Henry  V.,  as  well  as  by  those 
of  Elizabeth  and  Charles  T. 

Article  35  of  the  Prince  Rupert  Code  contains  the  requirement  that 
"  whoever  shall  do  violence  to  any  who  shall  ])ring  victuals  to  the  camp  or 
garrison,  or  shall  take  his  horse  or  goods,  shall  sulfer  death,  or  such  other 
punishment  as  he  shall  be  sentenced  to  by  Our  General  Court-Martial."' 
The  provision  was  repeated  as  Article  33  of  the  Code  of  James  II.  and 
appears  in  its  present  form  as  Article  11,  Section  1-1,  of  the  Britisli  Code  of 

'  Die.  J.  A.  Gen  ,  48  par.  1.  Where,  under  the  charjje  of  "  maliciously  destroying 
property"  in  violation  of  tliis  Aiticlf.  liic  court  convicted  the  accused,  exceiH  as  to"  the 
word  "maliciously,"  !md  imposed  sentence,  Jielil  that  hy  this  exception  in  its  finding 
of  the  (jiM  of  the  offense  charged  the  court  had  in  fact  acquitted  the  accused  of  the 
same,  and  that  the  form  of  its  judgment  was  therefore  irregular  and  improper  :  and 
advised  that  the  proceedings  be  returned  to  the  C(i\)rt  for  revision,  so  tiiat  it  inii:ht  cither 
formally  ac(piit  the  accused  altogether  or  find  him  not  guilty  of  the  charge,  but  guilty 
of  "conduct  t(t  the  prejudice  of  good  order  and  military  discipline."     IbUi.,  par.  2. 

»  Samuel,  560-562. 


438  MILITAR  r  LA  W. 

ITT-i,  as  Article  11,  Section  13,  of  the  American  Articles  of  1776,  and  as 
No.  57  of  the  Articles  of  1S0(). 

Article  57.  Whosoever,  belonging  to  the  armies  of  the  United  States  in 
foreign  parts,  or  at  any  place  (vithin  the  United  States  or  their  Territories 
during  rebellion  against  the  .supreme  authority  of  the  United  States,  forces  a 
safeguard,  shall  suffer  death. 

Article  10  of  the  Prince  Rupert  Code  contained  the  following  provision 
on  this  subject:  "  Whoever  shall  presume  to  violate  Our  Safe-guard,  Safe- 
Conduct,  or  Protection  (knowing  the  same),  shall  sutler  death  or  such  other 
punishment  as  shall  be  inflicted  upon  him  by  Our  General  Court-Martial." 
It  will  be  observed  that  this  provision  is  considerably  more  comprehensive  in 
its  terms  than  the  present  Article,  inasmuch  as  all  forms  of  instruments 
similar  in  tenor  to  safeguards,  such  as  safe-conducts  and  the  like,  are 
included  within  the  scope  of  the  Article.  The  requirement  appears  as 
Article  17,  Section  U,  of  the  British  Code  of  1774-,  as  Article  17,  Section 
13,  of  the  American  Articles  of  177G,  and  as  No.  55  of  the  Articles  of  1806. 

The  British  Military  Codes  have  always  made  a  distinction  between 
offenses  committed  within  the  territorial  limits  of  the  United  Kingdom  and 
those  committed  outside  of,  or  beyond,  such  jurisdiction.  This  has  been  the 
case  to  a  marked  degree  since  the  passage  of  the  first  Mutiny  Act,  and  the 
distinction  has  been  repeatedly  made  in  the  Mutiny  Acts  themselves.  This 
distinction  was  based  upon  the  fact  that  the  exercise  of  military  jurisdiction 
in  certain  cases  would  not  be  sanctioned  by  Parliament  if  attempted  within 
the  territorial  limits  above  stated;  without  such  limits,  or  in  "foreign 
parts,"  in  the  language  of  the  Articles  and  Mutiny  Acts,  the  common  law 
not  being  operative,  no  such  conflict  of  jurisdiction  could  arise.  As  no  such 
jurisdictional  question  was  likely  to  arise  in  the  military  procedure  of  the 
United  States,  tlie  words  "foreign  parts"  were  omitted  from  all  the 
Articles  except  two,  the  56th  and  57th  of  the  present  Code. 

A  doubt  having  arisen,  during  the  pendency  of  the  War  of  the  Rebellion, 
as  to  the  power  of  a  court-martial  to  try  an  offense  under  the  Article  when 
committed  in  a  State  in  rebellion  against  Federal  authority  but  within  the 
territory  of  the  United  States,  the  clause  "  or  at  any  place  within  the  United 
States  or  their  Territories  during  rebellion  against  the  supreme  authority  of 
the  United  States  "  was  added  to  the  Article.* 


'  Section  n,  Act  of  .July  13,  1861,  (12  Stat,  at  Large,  257,)  and  Act  of  July  31,  1861 
(12  ibid.,  340).  In  its  present  form  the  Article  confers  upon  a  general  court-martial 
jurisdiction  to  try  the  offense  of  forcing  a  safeguard  in  two  cases :  (1)  when  the  offense  is 
I'ommitted  in  "foreign  parts,"  and  (2)  wlien  conunitted  within  the  territorial  limits  of  the 
United  States  fluring  rebellion  against  their  authority.  It  may  be  questioned,  however, 
whether  the  offense  would  be  so  triable  if  conunitted  within  the  territory  of  tlie  United 
States  during  invasion  by  a  foreign  power,  and  in  the  theatre  of  active  military  opera- 
tions. In  such  a  case  it  is  l)elieved  that  resort  would  have  to  be  had  to  the  military 
commission,  the  grant  of  jurisdiction  to  a  court-martial,  in  the  57th  Article,  not  being 
oufficienlly  comprehensive. 


THE  ARTICLES  OF  WAR.  439 

Safeguards. — A  safeguard  is  a  written  instrument  issued  by  the  general 
commanding  an  army  in  the  field,  for  the  pur])Ose  of  affording  protection  lo 
the  person  or  property  of  ii  non-combatant  witliin  the  theatre  of  active  mili- 
tary oj)erations.  The  instrument  is  ordinarily  issued  in  the  form  of  an  order 
in  writing,  signed  by  the  commanding  general  and  authenticated  by  the 
signature  of  a  principal  officer  of  tlie  staff,  and  is  i)Osted  on  the  pjremises  to 
which  it  is  intended  to  afford  protection.  An  escort  or  guard  may  or  may 
not  be  furnished  to  enforce  respect  to  its  terms.  It  is  not  necessary  to 
specify  in  the  instrument  itself  the  precise  amount  of  protection  that  is  to 
be  afforded,  since  it  is  the  purpose  of  the  commanding  general,  in  issuing 
tlie  safeguard,  to  guarantee  a  complete  immunity  from  interference  in 
behalf  of  the  person  or  property  therein  mentioned. 

Forcing  a  Safeguard. — The  offense  of  forcing  a  safeguard  is  committed 
by  a  military  person  \\ho,  with  a  knowledge  of  its  existence,  does  any  act  of 
violence  or  spoliation  in  or  upon  the  premises  protected,  or  willfully  dis- 
regards the  protection  afforded  by  the  instrument;  such  knowledge  being 
obtained  from  the  display  of  the  instrument,  or  from  the  notification  of  the 
person  in  whose  behalf  or  for  whose  protection  it  was  issued,  or  by  some 
other  sufficient  means;  otherwise  the  offender  could  not  be  guilty  of  the  high 
contempt  for  authority  which  is  indicated  by  the  commission  of  the  offense.' 

While  it  is  a  serious  offense  against  discipline  to  assault  a  sentinel,  or  to 
offer  violence  to  his  person,  or  to  disobey  his  instructions,  or  even  to  be 
wanting  in  res2)ect  for  his  office,  the  crime  of  forcing  a  safeguard  is  entirely 
different  from  any  of  these,  and  is  much  more  grave  in  character,  since  it 
involves  a  willful  disregard  of  the  authority  of  the  commander-in-chief  of 
an  army  in  the  field.' 

Article  58.  In  time  of  war,  insurreciion,  or  rebellion,  larceny,  robbery, 
burglarij,  arson,  mayhem,  manslaughter,  murder,  assault  and  battery  with 
an  intent  to  kill,  wounding,  by  shooting  or  stabbing,  with  an  intent  to  com- 
mit murder,  rape,  or  assault  and  battery  with  an  intent  to  commit  rape,  shall 
be  punishable  by  the  sentence  of  a  general  court-martial  when  coynmitted  by 
persons  in  the  military  service  of  the  United  States  ;  and  the  punishment  in 
any  such  case  shall  not  be  less  than  the  punishment  provided  for  the  like 
offense  by  the  laws  of  the  State,  Territory,  or  district  in  which  such  offense 
■may  have  been  committed. 

This  provision  first  appeared  in  the  following  form  as  Article  2,  Section 
20,  of  the  British  Code  of  1TT4 :  "  Notwithstanding  its  being  directed  in  the 
Eleventh  Section  of  these  Our  Rules  and  Articles,  that  every  Commanding 

'  That  such  a  previous  knowledge  is  essential  is  iiulicateil  by  the  terms  of  the  Article 
ns  it  appears  in  the  Codes  of  Prince  Kupert  and  .Tames  II.,  where  it  is  described  as  an 
integral  and  indispensable  part  of  the  offense  by  the  use  of  the  words  "knowing  the 
same  "  which  have  been  omitted  from  subsequent  codes. 

'  Samuel,  566-571;  Halieck,  Int.  Law,  665  and  autliorities  cited. 


440  MILITARY  LAW. 

Officer  is  required  to  deliver  up  to  the  Civil  Magistrate  all  such  Persons 
under  his  Command  who  shall  be  accused  of  any  Crimes  which  are  punish- 
able by  the  known  Laws  of  the  Land;  yet  in  Our  Garrison  of  Gibraltar, 
Island  of  Minorca,  Fort  of  Placentia,  and  Annapolis  Koyal,  wliere  Our 
Forces  now  are,  or  in  any  other  Place  beyond  the  Seas,  to  which  any  of  Our 
Troops  are  or  may  be  hereafter  commanded,  and  where  there  is  no  Form  of 
Onr  Oivil  Judicature  in  Force,  the  Generals  or  Governors,  or  Commanders 
respectively,  are  to  appoint  General  Courts-martial  to  be  held,  who  are  to 
try  all  Persons  guilty  of  Wilful  Murder,  Theft,  Robbery,  Rapes,  Coining  or 
Clipping  the  Coin  of  Great  Britain,  or  of  any  Foreign  Coin  current  in  the 
Country  or  Garrison,  and  all  other  Capital  Crimes,  or  other  Offenses,  and 
punish  Offenders  with  Death  or  otherwise,  as  the  Nature  of  their  Crimes 
shall  deserve." 

As  the  reasons  assigned  for  the  existence  of  this  Article  did  not  exist  in 
America,  that  is,  as  the  L^'nited  States  had  no  possessions  beyond  the  seas, 
and  as  there  were  no  portions  of  the  territories  of  tlie  United  States  over 
which  the  courts  of  some  one  of  the  States  did  not  exercise  jurisdiction  in 
respect  to  the  trial  and  punishment  of  criminal  offenses,  and,  moreover,  as 
the  authority  of  the  Continental  Congress  did  not  extend  to  judicial  matters 
not  arising  in  the  land  and  naval  forces,  this  provision  was  not  embodied  in 
the  Articles  of  either  177G  or  1806,  It  first  appeared  in  statutory  form  in 
the  Act  of  March  3,  1863,'  and  is  embodied  in  the  present  code  as  the  58tli 
Article  of  War.' 

Application  of  the  Article. — Prior  to  the  enactment  of  this  Article  the 
offenses  enumerated  therein  would  have  been  punishable,  if  at  all,  by  mar- 
tial law;  the  effect  of  the  enactment  has  therefore  been  to  restrict  the  opera- 
tion of  martial  law  in  its  application  to  the  offenses  named. 

The  jurisdiction  conferred  by  this  Article  upon  military  courts  has 
been  held  by  the  highest  judicial  authority  to  be  exclusive,  not  concurrent 


J  12  Stat,  at  Larcie,  736.  See,  also,  Acts  of  .Tiily  13,  1861,  sec.  5,  (12  Stat,  at  Large, 
257,)  and  .July  31,  1861  (12  ibid.,  284). 

'  The  Article  in  its  present  form,  however,  is  not  directly  traceable  to  the  correspond- 
ini^  provision  of  the  British  Code  which  it  so  closely  resembles,  but  is  a  "  part  of  an  Act 
containing  numerotis  provisions  for  the  enrollment  of  the  national  forces,  *  *  *  having 
for  their  object  to  secure  a  large  force  to  carry  on  the  then  exisiiug  war,  and  to  give  eflS- 
ciency  to  it  when  called  into  service.  It  was  enacted  not  merely  to  insure  order  and 
di.scipline  among  the  men  composing  those  forces,  but  to  protect  citizens  not  in  the  mili- 
tary service  from  the  violence  of  soldiers.  It  is  a  matter  well  known  tliat  the  march 
even  of  an  army  not  hostile  is  often  accompanied  with  acts  of  violence  and  iiiliage  by 
straggling  parties  of  soldiers  which  tlie  most  rigid  discipline  is  hardly  able  to  prevent. 
The  offenses  mentioned  are  those  of  most  common  occurrence,  and  the  swift  and  summary 
justice  of  a  military  court  was  deemed  necessary  to  restrain  their  commission."  Cole- 
man vs.  Tennessee,  97  U.  S.,  509.  In  the  same  case  it  was  held  that  the  criminal  courts 
of  the  loyal  States  had  concurrent  jurisdiction  with  military  courts  for  the  trial  of  the 
several  offen.ses  named  in  the  Article,  but  that  wlien  the  Federal  forces  were  in  the 
enemy's  country  military  tribunals  had  exclusive  jurisdiction  for  the  trial  of  offenses 
committed  by  persons  in  the  military  .service  of  the  United  States. 


THE  ARTICLES  OF   WAR.  441 

merely  with  that  of  the  eivil  tribunals.' 

In  framing  a  charge  under  this  Article,  it  will  not  in  general  be  essential 
to  allege  in  connection  with  the  date  of  the  oifense,  or  to  show  by  evidence, 
that  the  act  was  committed  at  a  time  of  war,  etc. ;  this  being  a  fact  of  which 
a  court  will  ordinarily  properly  take  judicial  notice.* 

Wliero  a  sentence  adjudged  by  a  court  convened  by  the  authority  of 
tliis  Article  imposed  a  punisiiment  of  less  severity  than  that  provided  for 
the  same  oiTense  by  the  law  of  the  State  in  which  the  oifense  was  committed 
(as  imprisonment  where  the  law  of  the  State  required  the  death-penalty), 
it  has  been  held  that  such  a  sentence  was  unauthorized  and  inoperative. 
But  though  the  punishment  must  not  l)e  "  less,"  it  may  legally  be  of 
greater  severity  than  that  provided  by  the  local  statute.* 

In  imposing  punishment  the  court  should  be  governed  by  the  local  law 
(so  far  as  is  required  by  the  Article),  although  the  offense  was  committed 
in  a  state  whose  ordinary  relations  to  the  general  government  had  been 
suspended  by  a  state  of  war  or  insurrection.' 

Arson. — Arson  is  the  malicious  and  willful  burning  of  the  house  of 
another.*  It  was  puuisha])le  capitally  at  common  law,  being  an  offense  not 
against  property  merely,  but  one  affecting  the  security  of  the  dwelling;  and 
it  is  still  so  punishable  when  committed  upon  territory  within  the  exclusive 
jurisdiction  of  the  United  States.*     The  intent,  which  constitutes  an  essen- 

'  Coleman  vs.  Tennessee,  97  U.  S.,  513.  And  see  People  vs.  Grardiner,  6  Parker,  143; 
G.  O.  29,  Dept.  of  the  Nortliwest,  1864  ;  do.  32,  Dept.  of  Louisiana,  lb66.  But  see  Dig. 
i.  A.  Gen.,  par.  87. 

Dig".  .J.  A.  Gen.,  40,  par.  '2;  People  vs.  Gardiner,  6  Parker,  143. 

'  Ibid.,  par.  :>.  Held  (Xoveinhcr,  1865)  that  niiiitiuy  courts  were  still  empowered  to 
exercise  the  jurisdiction  conferred  by  this  Article,  tlie  status  belli  not  iiaving  j-et  been 
declared  to  be  tenuinated  either  by  the  Executive  or  Congress.  A  court-martial  of 
course  could  have  no  autliority  whatever  to  decide  whether  liie  war  was  ended.  It  is 
the  better  practise,  however,  to  jillege  in  the  specification  the  existence  of  a  State  of  War 
at  the  time  of  the  commission  of  the  offense.     Ibid  ,  par.  4. 

See  the  application  of  this  principle  to  tiie  fact  of  the  existence  of  the  late  War  of  the 
Rebelliot),  in  Justice  Field's  charge  to  the  grand  jury  in  United  States  vs.  Greathouse,  4 
Sawyer,  4")7. 

*  Dig.  .J.  A.  Gen.,  49,  par  ">,  That  the  Southern  States  during  the  late  war  were  at 
no  time  out  of  the  Union,  see  White  vs.  Hart,  13  Wall.,  646. 

M  BlacUstone,  018;  2  East  P.  C  .  1015;  Coke  3.  Inst.,  66;  I.  Hawkins  P.  C,  137. 

5  This  oifense  is  defined  in  the  Kevi.sed  Statutes  in  the  following  terms  : 

Every  person  who,  within  any  fort,  dock-yard,  nav3'-yard,  arsenal,  armor}-,  or  mag- 
azine, the  site  whereof  is  under  tlie  jurisdiction  of  the  United  States,  or  on  the  site  of 
any  li^'hthouse  or  other  needful  building  belonging  to  the  United  Stales,  the  site  whereof 
is  under  their  jurisdiction,  willfully  and  m.-iliciously  burn.s  any  dwelling-house  or  man- 
sion-house, or  any  store,  barn,  stable,  or  other  building,  parcel  of  any  dwelling  or 
mansion  house,  shall  suffer  death.* 

Ever}'  person  who.  in  any  of  the  places  mentioned  in  the  preceding  section,  mali- 
ciously sets  fire  to  or  burns  any  arsenal,  ;irmory,  magazine,  rope-walk,  ship-house,  ware- 
house, blockhouse,  or  barrack,  or  any  store-house,  barn,  or  stable  not  parcel  of  a 
dwelling-house,  or  any  other  building  not  n\entioned  in  such  section,  or  any  vessel  built 
or  begun  to  be  built,  or  repairing,  or  any  lighthouse  or  beacou,  or  any  limber,  cables, 


*  Section  5."J85,  Revised  Statutes. 


442  MILITARY  LAW. 

tiai  element  of  the  offense,  must  be  positive  in,  character,  as  is  evidenced 
bv  the  descriptive  words  of  the  definition  "  willful  and  malicious,"  and  an 
act  of  burning  not  accompanied  by  such  an  intent  would  constitute  some 
form  of  criminal  trespass,  or  a  statutory  offense  of  lesser  degree  than  arson.' 
For  this  reason,  also,  the  element  of  intent  cannot  be  replaced  by  negligence 
or  mischance.'  Where,  however,  the  burning  is  wilful,  malice  is  presumed 
from  the  deliberate  character  of  the  act.'  To  constitute  arson  at  common 
law,  there  must  be  an  actual  burning  of  some  part  of  the  house;  but  it  is 
not  necessary  that  any  part  of  the  house  be  actually  consumed.'  It  is  suffi- 
cient if  the  wood  of  the  house  be  charred  in  a  single  place,  so  as  to  destroy 

its  fibre.' 

Assault  and  Battery. — The  offense  of  ai<saiilt  and  battery  is  composed  of 
the  two  elements  named,  which,  taken  together,  constitute  the  complete 
offense.  An  assault  is  an  attempt  with  force  and  violence  to  do  corporal 
injury  to  another,  as  by  striking  at  him  with  a  Aveapon."  "  The  laying  of  a 
hand  upon  another,  or  seizing  his  clothing,  if  done  in  friendship  or  for  a 
benevolent  purpose,  is  not  an  assault;  but  if  the  act  is  done  in  anger  or  in  a 
rude  and  insolent  manner  or  with  a  view  to  hostility,  it  amounts  not  only  to 
an  assault,  but  to  a  battery.  Even  striking  at  a  person,  though  no  blow  be 
inflicted,  or  raising  the  arm  to  strike,  or  holding  np  one's  fist  at  him,  if  done 
in  anger  or  in  a  menacing  manner,  are  considered  by  law  as  assaults. "' 
Battery  is  the  unlawful  beating  or  wounding  of  another,'  A  battery,  from 
the  nature  of  the  offense,  includes  an  assault,  and  is  therefore  charged  as 
"  assault  and  battery  "  ;  but  there  may  be  an  assanlt  without  battery,  which 
is  regarded  by  the  law  as  a  criminal  offense. 

Assault  and  Battery  with  Intent  to  Kill. — The  crime  over  which  juris- 
diction is  conferred  upon  courts-martial  by  this  Article  is  not  that  of  assault 
and  battery  simply,  but  an  aggravated  form  of  that  off'ense,  described  in  the 


rigging,  or  other  materials  for  building,  repairing,  or  fitting  out  vessels,  or  any  pile  of 
wood,  boards,  or  other  lumber,  or  any  niililiiry,  naval,  or  victualing  stores,  arms,  or 
other'munitioiis  of  war,  shall  be  punished  by  a  fine  of  not  more  than  five  thousand  dol- 
lars and  by  imprisonment  at  hard  labor  not  more  than  ten  years.* 

Every  person  who  maliciously  sets  on  fire  or  burns  or  otherwise  destroys  any  vesse\ 
of  war  of  the  United  States  afloat  on  the  high  seas,  or  in  any  arm  of  the  sea,  or  in  any 
river,  haven,  creek,  basin,  or  bay  within  the  admiralty  jurisdiction  of  the  United  States, 
and  out  of  the  jurisdiction  of  any  particular  State,  shall  suffer  death. f 

>  1  Bishop  C.  L.,  §  .559,  2  ihid.,  %  14;  Coke.  23  Inst.,  67:  2  East  P.  C,  1019. 

5  Brown  vs.  State,'  52  Ala.,  345;  People  vs.  Fanshawe,  137  N.  Y  ,  68. 

»Mary  ts.  State,  24  Ark.,  44;  State  vs.  Sandy,  3  lud.,  570;  People  ts.  Butler,  16 
Johns.,  203;  Com.  vs.  Van  Scherick,  16  Mass.,  105. 

"People  vs.  Huggerty,  46  Cal  ,  354. 

^  U.  S.  vs.  Hand,  2  Wash.,  435;  State  vs.  Morgan,  3  Iredell,  186;  Slate  vs.  Bradley, 
34  Tex.,  95.  _       , 

«U.  S.  vs.  Onega.  4  Wash.,  .531;  U.  S.  vs.  Kitruan,  3  Cr.  C.  C.  435;  People  t». 
Islas,  27  Cal..  680;  Smith  vs.  State,  39  Miss.,  521;  Lawson  vs.  State,  30  Ala.,  14. 

'Wharton  Law.  Diet.;  II.  Bishop,  dim.  Law,  70-72. 


*  Sec.  5.386,  Revised  Statutes, 
t  Sec.  5387,  ibid. 


THE  ARTICLES  OF  WAIi.  443 

statute  as  "  assault  and  battery  with  inteut  to  kill/'  The  specific  iuteut  so 
described  may  be  express,  as  sliowii  l>y  the  circunistaiiees  attending  the 
conunission  of  the  assault,  or,  like  the  malicious  intent  in  murder,  "  may  be 
inferred  from  the  character  of  the  assault,  the  use  of  deadly  weapons,  and 
other  attending  circumstances."  '  The  proof  under  a  charge  of  assault  with 
intent  to  kill  must  be  such  as  to  show  that,  if  death  had  been  caused  by  the 
assault,  the  assailant  would  have  been  guilty  of  murder." 

Wounding,  by  Shooting  or  Stabbing,  with  an  Intent  to  Commit  Murder. 

This  oll'ense,  like  that  last  discussed,  is  an  aggravated  form  of  assault  and 

battery;  the  aggravation  depending  upon  the  character  of  the  weapons  used 
and  the  amount  of  injury  inllicted.  To  warrant  a  conviction  of  this  offense 
the  bodily  injury  must  iuive  been  inllicted  in  one  of  the  particular  methods 
set  forth  in  the  statute;  an  injury  inflicted  by  any  other  means  than  shooting 
or  stabbing,  or  with  any  other  instrument  than  a  lire-arm  or  cutting 
weapon,  would  be  chargeable  as  an  assault  and  battery  with  intent  to  kill  as 
above  described.  The  evidence  must  also  be  such  as  would  have  warranted 
a  conviction  for  murder,  as  distinguished  from  manslaughter  merely,  had 
death  resulted  from  the  assault.' 

Burglary. — Burglar}/,  at  the  common  law,  is  the  breaking  and  entering 
of  a  dwelling-house  by  night  with  intent  to  commit  a  felony  therein, 
whether  such  felonious  intent  be  executed  or  not.  The  breaking  is  either 
actual,  as  where  the  person  makes  a  hole  in  a  door  or  opens  a  window,  or  in 
law,  (constructive)  as  where  he  obtains  an  entrance  by  threats,  or  fraud,  or 
by  collusion  with  some  one  in  the  house. ^  In  the  United  States  the 
Enjrlish  definition  of  burglary  has  been  so  far  modified  by  statute  as  to  in- 
elude  offenses  committed  by  day  as  well  as  by  night,  and  in  other  buildings 
than  dwelling-houses;  and  various  degrees  of  the  offense  have  also  been 
established.' 

To  constitute  burglary  there  must  be  a  breaking,  removing,  or  putting 
aside  of  some  part  of  the  dwelling-house  which  is  relied  on  as  a  security 
against  intrusion.  A  door  or  window  left  open  is  no  such  security.  But  if 
the  door  or  window  be  shut,  it  need  not  be  locked,  bolted,  or  nailed;  a  latch 
to  the  door,  or  the  weight  of  the  window,  being  sufficient.  The  outer  door 
being  open,  entering  and  unlatching,  or  unlocking  a  chamber  door,  is 
burglary.'     The  raising  a  window-sash  which  was  down  and  closed,  and 

'  Walls  vs.  State,  90  Ala..  619. 

•^Rtnte  vs.  Rocd.  40  Vt.,  603;  Hall  rs.  State,  9  Fla.,  203. 

» Meredith  rs.  Stale,  60  Ala.,  441;  Stopp  vs.  State,  3  Tex.  App.,  138;  People  vs. 
Devine.  59  Cal.,  630. 

*  Sweet    Law  Diet.,  U.  S    ts.  Boweii,  4  Cr.  C.  C,  604.      Larceny  may  be  a  lesser 


ineludeil  ofTeiise  where  burglary  with  an  intent  to  commit  larceny  is  charged,  V.  S.  rs. 
Dixon,  1  ("r.  C.  C.  414;  U.  S.  rs.  Read.  2  Cr.  C.  C,  198;  State  vs.  Wilson,  Coxe.  441; 
Com.  rs.  Newell,  7  .Mass.,  247;  Die:.  J.  .\.  Gen.,  207. 

*  Archbold  Crim.  Law,  1(169. 

♦State  vs.  Bowen,  13  lud.,  244;  State  vs.  Reid,  20  Iowa.  413;  Lyons  vs.  People,  68 
111.,  271;  Com.  vs.  Strapney,  105  Mass.,  588. 


44-1:  MILITARY  LAW. 

which  was  the  only  fastening  to  the  window,  and  the  entry  of  the  party 
through  the  same  into  the  house,  is  such  a  breaking  as  constitutes  burglary.' 

Breaking ;  Time.— The  act  of  breaking  and  entering  necessarily  involves 
the  use  of  force.  Such  breaking  may  be  actual  or  constructive.  It  is  actual 
where  the  offender,  for  the  purpose  of  getting  admission  for  any  part  of  his 
body,  or  for  a  weapon  or  other  instrument,  in  order  to  effect  his  felonious 
intention  breaks  a  hole  in  the  wall  of  a  house,  breaks  a  door  or  window, 
picks  the  lock  of  a  door  or  opens  it  with  a  key,  or  even  by  lifting  the  latch, 
or  unlooses  any  other  fastenings  to  doors  or  windows  which  the  owner  has 
provided.''  Constructive  breaking  is  wliere  a  person  by  the  use  of  deceit, 
artifice,  or  fraud  secures  entrance  to  a  habitation  with  intent  to  commit  a 
felony  therein.'  It  is  also  essential  that  the  offense  should  have  been  com- 
mitted at  night," 

The  Building. — Every  dwelling-house  is  a  habitation  in  which  burglary 
may  be  committed,  and  also  all  outhouses  attached  to  the  dwelling  and 
intended  for  the  comfort  and  convenience  of  the  family.^  A  portion  of  a 
building  may  come  under  this  description  if  such  portion  be  used  as  a 
dwelling,  the  rest  being  ajjpropriated  to  other  purposes.^  It  is  not  necessary 
that  the  premises  be  actually  occupied,  that  is,  that  a  person  should  be 
actually  in  the  building  at  the  time  when  the  burglary  is  committed.' 

'  Frank  r.s.  Slate,  39  Miss.,  48o.  Where  iiu  entry  to  a  building  is  effected  tliroiigh 
a  hanging  window  over  a  shop  door,  designed  for  light  and  ventilation,  kept  down  by- 
its  own  weiglit  so  firmly  as  to  be  opened  only  by  tlie  use  of  force,  and  so  situated  that  a 
ladder  or  something  of  the  kind  is  necessary  to  reach  it,  is  a  sufficient  breaking  to  con- 
stitute burglary.  Dennis?)*.  People,  27  Mich.,  151.  An  area  or  excavation  infrout  of 
a  cellar  window  covered  and  protected  by  an  iron  grating  is  to  be  deemed  a  ]:)art  of  the 
cellar,  and  the  raising  of  the  grating  is  a  breaking  and  entering  within  the  statute  of 
Michigan.  People  vs.  Nolan,  22  i\rich.,  229.  So,  also,  as  to  entering  by  getting  down  a 
chinuiey.  Com.  vs.  Stephenson,  8  Pick.,  354;  State?;,'*.  Willis,  7  .Jones,  190.  And  so  as  to 
the  removal  of  a  plank  forming  part  of  partition-wall,  the  plank  being  loose  and  consti- 
tuting no  part  of  the  freehold.     Com.  vs.  Trinmier,  1  Mass.,  476. 

Burglary  at  common  law  is  the  breaking  and  entering  of  a  dwelling  in  the  night-time 
with  a  felonious  intent.  Wliere  a  soldier  was  brought  to  trial  upon  a  cliarge  of  "  bur- 
glary," with  a  specification  setting  forth  that  he  entered  the  quarters  of  an  officer  in  the 
night  tlirough  an  open  window  with  intent  to  steal,  lield  that,  although  the  offense 
described  was  not  a  burglary  in  law — the  essential  element  of  a  breaking  being  wanting 
— the  charge  and  specification,  taken  together,  made  out  a  sufficient  pleading  of  a  dis- 
order to  the  prejudice  of  good  order  and  military  discipline  under  the  (j2d  Article  of 
war.*  And  similarly /(eW  of  an  offense  chaiged  as  "  burglary,"  but  described  in  the 
specification  as  consisting  in  the  breaking  and  entering  of  a  post-trader's  store  in  the  day- 
time      Dig.  J.  A.  Gen.,  207. 

*  II.  Rus.sell  on  ('rimes,  2;  Com.  «.■*.  Merrill,  Tliach.  dim.  Cases,  1;  Ray  ^-s.  State, 
66  Ala.,  281:  II.  Bishop  C.  L.,  91-100. 

■'State  vs.  Johnson,  Phil.  (N.  C.)  186;  State  vs.  Mordecai,  68  N.  C  ,  207;  State  vs. 
Henry,  9  Iredell,  403:  People  vs.  Boujct,  2  Parker,  11;   1  Hale  P.  C,  552. 

••  In  the  law  respecting  i)urglary  this  condition  is  fulfilled  where  there  is  not  daylight 
enough  to  discern  a  face;  actual  obscurity  is  not  necessary.  4  Black.  Com.,  224.  It 
will  not  avail  an  accu.scd  jierson  that  there;  was  enough  light  from  the  moon,  street- 
lamps,  and  buildings,  aided  by  snow,  to  di.scern  the  features  of  another  person.  State 
m.   Morris,  47  Conn.,  179;  II.  liisli.  C.  L.,  101-103. 

^Rus>ell  on  Crimes,  15;  II.  Bi.sh.  C.  L.,  104-108. 

«  Ibid.;  II.  Bish.  C.  L.,  104,  105. 

'  Slate  vs.  Keid.  20  Iowa,  513;  State  vs.  Williams,  90  N.  C,  724. 

»  See  Gen.  Ct.-uiartial  Orders,  No.  20.5,  A.  G.  O.,  1876. 


THE  ARTICLES  OF  WAR.  445 

The  Intent. — The  intent  in  the  breaking  and  entering  must  be  to 
commit  felony,  that  is,  to  commit  hirceny,  robbery,  arson,  or  some  other 
crime  amounting  to  felony  in  the  jurisdiction  within  which  the  olTense  id 
committed;  and  snch  intent  must  be  alleged  in  the  charges.'  It  is  not 
necessary,  however,  that  the  intent  should  have  been  carried  into  elTect. 
The  intent  will  in  general  be  proved  from  the  circumstances  attending  the 
commission  of  the  offense.  Where  no  snch  intent  can  be  established  the  act 
of  forcible  entry  constitutes  a  trespass. 

Murder — Degrees. — Murder  is  the  willful  killing  of  a  human  being  in 
the  i)eace  of  the  country,  with  malice  aforethought  either  express  or 
implied.'  Although  the  definitions  of  murder  dilTer  somewhat  in  the  several 
vStates,  there  is  general  concurrence  as  to  premeditation  or  malice  afore- 
thought being  an  essential  ingredient  of  the  offense — that  is,  that  there  was 
a  deliberately  cherished  intention  to  cause  death  or  to  inflict  grievous  bodily 
harm,  or  snch  reckless  disregard  of  the  consequences  of  a  wrongful  act  as  to 
warrant  the  inference  of  such  an  intention.  There  is  also  some  difference 
as  to  the  kind  or  amount  of  evidence  necessary  to  establish  premeditation ; 
but  it  may  be  said,  in  general  terms,  that  the  malice  aforethought  may  be 
established  by  independent  testimony  or  may  be  inferred  when  "the  fact  of 
killing  is  proved  by  satisfactory  evidence,  and  there  are  no  circumstances 


'  Staters.  Eaton,  3  Harriugton,  554;  Bell  vs.  State,  48  Ala.,  684;  State  vs.  Lockharl, 
24  Ga.,  420;  Com.  rs.  Dolieity,  10  Ciisli.,  52;  Barber  ys.  Suite,  7«  Ala..  19. 

«  U.  S.  vs.  Outerhiidgi',  5  Sawyer,  620;  U.  S.  vs.  Carr,  1  Woods,  480;  U.  S.  vs.  Kiug, 
34  Fed.  Rep.,  302;   U.  S.  vs.  Meaglier,  37  ibid..  H75. 

Murder  at  common  law  is  "the  unlawful  killing  by  a  person  of  sound  memory  and 
discretion  of  any  reasonable  creature  in  being  and  undur  the  peace  of  the  State,  with 
malice  aforethought  either  express  or  implied."  In  many  of  the  States  two  or  more 
degrees  of  murder  are  now  distinguished  by  the  statute  law;  murder  in  the  first  degree- 
generally  defined  as  a  killing  accdinpanied  by  express  malice,  or  a  deliberate  unlawful 
intent  to  cause  the  death  of  the  particular  person  killed— being  ordinarily  alnne  made 
capital.  Dig.  J.  A.  Oen.,  524,  iiar.  1.  See,  also,  Coke,  Inst.,  47;  4  Bl.  Com.,  95;  1  East 
P.  C,  214;  1  Kussell  Cr.,  482;  1  GabheM.  454;  2  Wharton  Cr.  L.,  §  930;  3  Greenl.  Ev.. 
^  130;  Commonwealth  vs.  Web.ster,  5  Cash.,  304;  G.  O.  23.  Dept.  of  California,  1865 
(Remarks  of  Maj.Gen.  ^McDowell).  "Murder,  originally,"  says  Foster  (p.  302,  citing 
Bracloii  "  de  nuu'dro  "),  was  "an  insidious  secret  assassination;  ucculla  occisio,  nullo 
sciente  aiit  ridente."  Now,  secrecy  in  the  commission  of  the  act  is  significant  oidy  as 
evidence  ot  legal  malice.     Dig.  J.  A.  Gen.  524,  par.  1. 

Where  a  soldier,  while  a  superior  acting  in  the  line  of  his  duty  was  attempting  to 
arrest  him  for  a  grave  breach  of  discipline,  discharged  his  loadeil  nuisket  at  the  latter 
with  intent  to  kill  him.  t)ut.  missing  him.  killed  a  .M)ldier  standing  near,  held  that  the 
crime  committed  was  clearly  murder.  Diix.  J.  A.  Gen.,  524.  par.  2;  Angell  vs.  Slate. 
36Te.\,,542. 

The  taking  of  the  life  of  a  prisoner  of  war  when  not  concerting  an  escape  or  engag- 
ing in  any  violence  or  breach  of  di.scipline  justifying  such  an  extreme  measure  is  as 
fully  murder  as  could  be  any  homicide  conunitted  witli  deliberate  malice  in  time  of 
peace  *      Dig  J.  A.  Gen.,  524,  par.  3. 

Where,  in  a  case  of  an  ollicer  charged  with  the  murder  of  a  soldier,  it  appeared  that 
the  kiilin<i  was  done  with  a  sword  pro|>crly  worn  as  a  side  arm.  /<<;///  that  its  employment 
did  not  justify  the  same  presumption  of  delibi  rale  intent  to  kill  which  the  use  of  a 
deadly  weapon  autliorizes  in  cases  in  general.     Ibid  ,  525,  par.  4. 

•  While  it  is  lawful  to  kill  an  enemy  •'  in  the  heat  and  exercise  of  war."'  yet  "  to  kill  such  an  enemy 
after  he  has  laid  ilown  his  arms,  ttuil  especially  when  he  is  confined  in  prison,  is  murder."  State  vs. 
Gat.  13  Minn.,  311. 


446  MILITARY  LAW. 

disclosed  tending  to  show  justification  or  excuse,  and  there  is  nothing  to 
rebut  the  natural  presumption  of  malice.'  In  some  of  the  States  the  offense 
of  murder  is  divided  into  degrees,  depending  upon  the  kind  and  amount  of 
malice  shown,  as  tending  to  aggravate  the  crime  and  to  exclude  considera- 
tions of  justification  or  excuse.  The  distinction,  wherever  it  exists,  is 
statutory,  not  being  recognized  at  the  common  law. 

Manslaughter. — ^f(mslaughter  is  the  unlawful  killing  of  a  human  being 
without  malice,  express  or  implied.  It  may  be  voluntary  or  involuntary. 
It  is  vohnitary  when  committed  with  a  design  to  kill,  under  the  influence 
of  sudden  or  violent  passion,  caused  by  great  provocation,  which  the  law 
considers  such  a  palliative  of  the  offense  as  to  rebut  the  presumption  of 
malice  which  would  otherwise  arise. ^  It  is  involuntary  when  committed  by 
accident  or  without  any  intention  to  take  life.^  "  The  crime  of  man- 
Blaugliter  is  involved  in  that  of  murder;  and  so  if  a  jury,  in  a  prosecution 
for  murder,  finds  that  the  homicide  was  without  malice,  they  may  find  the 
defendant  guilty  of  manslaughter  alone."  * 

Manslaughter,  at  common  law,  is  distinguished  from  murder  by  the 
absence  of  malice  aforethought.  The  State  statutes  have  generally  consti- 
tuted degrees  of  the  offense  of  manslaughter  as  of  murder,  a  different 
measure  of  punishment  being  assigned  to  each  degree.  The  laws  of  the 
Ignited  States,  though  prescribing  different  punishments  for  manslaughter 
under  different  circumstances,  recognize  no  discriminations  of  grades  in 
either  manslaughter  or  murder.^ 

This  crime,  when  its  commission  by  an  officer  or  soldier  affects  directly 
the  discipline  of  the  service  (as  Avhere  the  person  killed  is  another  officer  or 
soldier,  and  the  killing  occurs  at  a  military  jjost  or  while  the  parties  are  on 
active  service),  may  be  taken  cognizance  of  by  a  court-martial,  in  time  of 
peace,  under  Article  G2,  as  "conduct  to  the  prejudice  of  good  order  and 
military  discipline."  * 

>  Com.  vs.  Webster,  59  Mass. ,  306. 

'  Mere  provocative  words,  however  aggravating,  are  not  sulficient  to  reduce  a  crime 
from  murder  to  manslaughter.     Allen  vs.  U.  S. ,  164  U.  S.,  492. 

»  U.  S.  TS.  Outerbridge,  5  Sawyer,  630-625.  See,  also,  Sections  5339  and  5341, 
Revised  Statutes,  and  Act  of  March  3,  1875  (18  Stat,  at  Large,  473;. 

*  U.  S.  vs.  Carr,  1  Woods,  480,  487. 
»  Dig.  J.  A.  Gen.,  524,  par.  1. 

*  Ihid.,  485.  Where  a  soldier,  confined  with  other  prisoners  in  a  guard-house  in  time 
of  peace,  was  under  the  influence  of  liquor  and  noisy,  and  continued  to  be  noisy  and 
disorderly  though  repeatedly  ordered  by  the  oflicer  of  the  day  to  keep  quiet,  and  was 
finally  struck  or  thrust  in  the  breast  by  the  latter  with  his  sword  and  mortally  wounded 
so  that  he  presently  died  ;  and  it  did  not  appear  that  there  was  any  danger  of  mutiny  or 
serious  disturbance  on  the  part  of  the  other  prisoners  present  at  the  time, — lield  that  the 
evidence  established  no  sufficient  justification  for  a  resort  by  the  officer  to  such  an 
extreme  proceeding,  and  that  his  conviction  by  court-martial  of  "  manslaughter  to  the 
prejudice  of  good  order  and  military  discipline,"  and  sentence  of  dismissal,  were  war- 
ranted and  proper.  An  officer  has  no  right  to  take  the  life  of  a  soldier,  nor  to  commit  a 
battery  upon  him  with  a  dangerous  weapon,  except  in  a  most  aggravated  case  :  as  in  a 
case  of  riot,  rescue,  or  mutiny,  violent  resistance  to  superior  authority,  escape,  or  refusal 
to  obey  a  lawful  order  requiring  instant  obedience — when  no  other  but  such  extreme 


TEE  AliriCLK8  OF    WAR.  447 

Homicide. — Homiciile  is  a  generic  term  embracing  every  mode  by  whicb 
the  life  of  one  man  is  taken  by  another.'  Criminal  ox  felonious  homicide, 
which  has  already  been  discussed  under  the  heads  of  murder  and  man- 
slaugliter,  consist  in  tlie  unlawful  taking  by  one  human  being  of  the  life  of 
another,  in  such  a  manner  that  he  dies  within  the  .space  of  a  year  and  a  day 
from  the  time  of  the  giving  of  the  mortal  wound,'  But  there  are  circum- 
stances in  whicli  the  taking  of  human  life  is  one  of  the  high  duties  of 
persons  in  office ;  such  is  the  case,  for  example,  when  the  life  of  a  criminal 
is  taken  by  an  officer  of  the  law,  in  execution  of  a  capital  sentence  lawfully 
imposed  by  a  competent  tribunal;  or  where  the  life  of  an  enemy  is  taken,  in 
a  time  of  public  war,  by  a  duly  authorized  combatant,  in  the  actual  military 
service  of  a  belligerent.  Althougli  this  duty  is  not  to  be  sought,  its  perform- 
ance, like  that  of  all  others,  is  truly  commendable  and  should  never  be  made 
the  ground  of  reproach;  indeed,  its  performance  by  a  soldier  in  the  defense 
of  his  country  is  highly  praiseworthy.  Of  course,  in  the  circumstances 
above  set  forth,  the  force  which  caused  death  was  not  unlawful,  and  the 
taking  of  life  is,  for  that  reason,  not  punishable.  So,  too,  as  will  presently 
be  seen,  it  is  lawful  to  resist,  by  whatever  force  is  necessary,  one  who  is 
attempting  to  commit  a  felony;  and  the  same  is  true  when  one  causes  death 
in  the  exercise  of  his  right  of  self-defense.  The  taking  of  human  life, 
therefore,  is  not  always  a  criminal  act,  and  when  non-criminal  in  cliaracter 
may  be  e\tho.r  jiiff/ijiable  or  excK sable. 

Justifiable  Homicide. — Justifiailc  hoynicide  consists  in  the  taking  of 
human  life  either  in  obedience  to  the  law,  as  in  the  execution  of  a  criminal 
or  the  killing  of  an  enemy  in  Avar,  under  such  circumstances  as  to  warrant 
tlie  inference  that  the  act  was  done  without  malice  or  criminal  intention. 
The  principal  cases  of  justifiable  homicide  are: 

Homicide  in  Obedience  to  Law. — Under  this  head  fall  the  execution  of 

means  will  restrain  or  compel  compliance.*  And  an  act  of  killing  of  a  soldier  which 
in  time  of  war  niiglil  be  justifiable  homicide  might  be  manslaughter,  or  even  murder, 
in  tinu!  of  peace,     llnd.,  486.  par.  4. 

Where,  in  t ant  of  peace,  a  soldier  while  ruiuiing  toward  his  quarters  from  two  offi- 
cers of  the  coininaiid,  who  were  attempting  to  arrest  him  for  disorderly  conduct  at 
night,  was,  by  the  order  of  the  superior  officer,  fired  at  by  the  inferior  and  mortally 
wounded  ;  and  it  was  doubtful  upon  the  evidence  whether  a  sufficient  effort  had  been 
made  to  halt  liie  soldier  l)efiire  firing,  while  at  the  same  time  it  appeared  quite  probable 
that  he  miu-ht  sulxeqiienlly  have  been  identified  at  the  post  and  duly  punished. — held 
that,  wliatevir  may  have  been  the  offense,  if  any,  of  tin;  junior  otlicer,  the  superior  who 
directed  the  firing  might,  upon  the  death  of  the  soldier  from  his  wound,  properly  be 
brought  to  trial  on  a  charge  of  "manslaughter  to  the  prejudice  of  good  order  and  mili- 
tary tiiscipline."     Ibid.,  par.  o. 

Held  that  the  fact  that  the  party  shot  and  killed  in  an  altercation  with  another  was 
himself  armed  with  a  pistol,  which,  however,  he  <iid  not  produce  or  use,  and  was  not 
proved  to  have  atlempted  to  produce  or  use,  was  evidence  wholly  insiitlicient  to  sustain 
a  plea  of  self-defense  offered  by  the  party  by  whom  the  homicide  was  committed. 
Ibid..  487,  par.  5. 

'  Com.  vs.  Webster,  5  Cush.,  808. 

'  Com.  vs.  MacLoon,  101  Mass.,  6,  8. 


•  See  G.  C.  M.  O.  47,  H.  g.  A.,  1S77,  and  U.  S.  vs.  Carr,  1  Woods,  4S4. 


448  MILITARY  LAW. 

criminals  and  the  killing  of  etiemies  in  war.-  The  former  case  needs  no 
explanation,  save  to  say  t^iat  it  is  an  imperative  duty,  prescribed  by  the  law, 
the  ])erformance  of  which  cannot  be  avoided.  The  killing  of  an  enemy  is 
justitiable  only  when  lie  is  a  part  of  the  armed  force  of  a  belligerent  State  or 
is  engaged  in  the  performance  of  an  act  of  war. 

"When  an  officer  of  the  law  encounters  resistance  in  the  execution  of 
lawful  process,  or  in  an  attempt  to  make  a  lawful  arrest,  he  may  use  sufficient 
force  to  overcome  such  unlawful  resistance.  The  kind  and  amount  of  force 
used  will  depend  upon  the  character  of  the  resistance  encountered.  If  the 
person  arrested  be  unarmed,  only  such  force  will  be  lawful  as  is  necessary  to 
compel  obedience;  if  he  have  in  his  possession  a  deadly  weapon,  extreme 
measures  will  be  justified  on  the  part  of  the  offilcer  making  the  arrest.'  It 
is  proper  to  observe,  in  this  connection,  that  any  opposition,  obstruction,  or 
resistance  intended  to  prevent  an  officer  from  doing  his  official  duty  is  an 
indictable  offense  at  common  law,  the  punishment  of  which  is  regulated  by 
the  nature  of  the  offense.' 

Excusable  Homicide. — Excusable  homicide  is  that  which  results,  from 
accident  or  misadventtire  in  the  doing  of  a  lawful  act;  or  in  a  proper  and 
reasonable  exercise  of  the  right  of  self-defense.^  Of  the  former,  the  flying 
off  of  the  head  of  a  hatchet  which  is  being  used  by  its  owner  with  reasonable 
care  and  for  a  lawful  purpose,  by  which  a  bystander  is  killed;  or  where  a 
child  dies  as  a  result  of  moderate  correction  at  the  hands  of  a  parent,  are 
examples.  In  these  cases  the  act  is  legal  and  the  homicidal  consequence  is 
accidental." 

Self-defense. — x\.  man  may  repel  force  by  force  in  the  defense  of  his 
person,  his  family,  or  property  against  any  one  who  manifestly  endeavors  by 
violence  or  surprise  to  commit  a  felony,  as  murder,  robbery,  or  the  like. 
The  right  to  oppose  force  by  force  in  such  a  case  is  founded  upon  tlie  law  of 
nature,  and  is  not  and  cannot  be  superseded  by  the  law  of  society.'  To 
justify  the  taking  of  life  in  self-defense  "  the  intent  must  be  to  commit  a 
felony."  If  it  be  only  to  commit  a  trespass,  as  to  beat  the  party,  it  will  not 
justify  the  killing  of  the  aggressor.  No  words,  no  question,  however  insult- 
ing and  irritating,  not  even  an  assault,  Avill  afford  such  justification, 
although  it  may  be  sufficient  to  reduce  the  offense  from  murder  to  man- 
slaughter. "  In  the  next  place,  the  intent  to  commit  a  felony  must  be  ap- 
parent, which  will  be  sufficient,  although  it  afterwards  turn  out  that  the  real 
intention  was  less  criminal,  or  was  even  innocent.  Tliis  apparent  intent  is 
to  be  collected  from  the  attending  circumstances,  such  as  the  manner  of  the 


'  U.  S.  Ts   Rice.  1  Hughes,  560,  568;    Cunningham  vs.  Neagle,  135  U.  S.,  1  ;  U.  S. 
ti.  King,  34  Fed.  Rep.,  303  ;  State  vs.  Kirkpatrick,  43  iUd.,  689. 
'■'  U.  S.  vs.  Oulerbridge,  5  Sawyer,  630,  635. 
'  4  Blacksloue,  183-188  ;  II.  Bishop,  Crim.  Law,  §§  617-620. 
M  Blaekstone,  182-188. 
*  U.  S.  vs.  Rice,  1  Hughes,  560,  568. 


THE  ARTICLES  OF   WAR.  449 

assault,  the  nature  of  the  weapons  used,  and  the  like.  And  lastly,  to  pro- 
duce this  justilicatiou  it  must  appear  that  the  danger  was  imminent  and  the 
species  of  resistance  used  necessary  to  avert  it."  '  By  imminent  danger  is 
meant  immediate  danger — one  that  must  he  instantly  met;  one  that  cannot 
be  o-uarded  against  by  calling  on  the  assistance  of  others  or  the  protection  of 
the  law.  And  the  species  of  resistance  used — that  is,  the  means  to  prevent 
the  threatened  injury— must  be  such  as  were  necessilry  to  avert  it.' 

La.Yceny.— Larceny  is  the  wrongful  or  fraudulent  taking  and  carrying 
away  of  things  personal  with  the  intent  to  deprive  the  owner  of  the  same.' 
To  constitute  the  olTense  there  must  be  an  unlawful  taking,  whicii  implies 
that  the  goods  must  pass  from  the  possession  of  the  true  owner,  or  of  one 
having  a  qualified  right  of  property  therein,  and  without  his  consent.  There 
must  not  only  be  a  taking,  but  a  carrying  away.  A  bare  removal  from  the 
place  in  which  he  found  the  goods,  though  the  thief  does  not  quite  make  off 
with  them,  is  a  sufficient  asportation,  or  carrying  away.'  The  taking  and 
carrying  away  must  also  be  with  intent  to  deprive  the  owner  of  the  thing 

taken.'' 

This  offense,  save  in  the  case  contemplated  in  the  58th  Article,  is  in 
creneral  chargeable  under  the  G-^d  Article,  when  it  clearly  and  directly 
affects  the  order  and  discipline  of  the  military  service.  Stealing,  for  exam- 
ple, from  a  fellow  soldier  or  from  an  officer,  or  the  stealing  of  public  money 
or  property,  where  the  offense  is  not  more  properly  a  violation  of  Article  CO, 
is  generally  so  chargeable.* 

>  U.  S.  TS.  Wiltbiirsrer,  3  Wash..  521. 

»  U.  S.  vs.  Lee,  13  T.  R..  816;  Alleu  vs.  U.  S.,  150  U.  S.,  551  :  Starr  vs.  U.  S..  153 
U.  S..  614:  P.mrish  v/t.  Com.,  f^l  V;i  ,  1,  14-16  ;  Logue  vs.  Com.,  2  Wright  (Pa.\  265. 

»  2  East  PI.  Cr..  558  ;  Ransom  vs.  State.  22  Conn.,  156  ;  U.  S.  vs.  Dully,  1  Cr.  C.  C, 
164:  U.  S.  vs.  Ma.son.  3  Bl.itcli.,  360  ;  U.  S.  vs.  Sims,  4  Cr.  C.  C,  618. 

*  Stale  vs.  Wisdom.  8  Porter,  511  :  State  vs.  Jackson,  65  N.  C,  305  ;  Eckels  vs.  State, 
20  Ohio.  N.  S  .  508  :  Com.  vs.  Berr\ ,  99  Mass..  428  ;  People  vs.  Seklen,  37  Cal.  51. 

5  I)n(Ul  vs.  Hamilton,  12  Taylor,  31;  Stale  vs.  Hawkins,  8  Porter,  461  ;  Com.  rs.  Low, 
Thach.  CriM\.  Cases,  477;   U.  S.  vs.  Durkte,  1  Wall.,  196. 

*  Dig.  J.  A.  Gen.,  67,  par,  2.  A  s  )liiier.  conienii>lating  desertion,  borrowed  from 
anothe'soldier.  on  the  day  of  his  absenting  himself,  a  b'.ou.se,  which  lie  thereupon  pro- 
ceeded wron-rfuUy  to  dispose  of.  Held  that  if,  as  was  quite  evidently  the  fact,  he  had, 
at  the  time  of  borrowing,  the  intention  to  appropriate,  he  was  chargeable  with  larceny, 
since  the  owner,  in  lendinir.  consente  1  to  part  with  the  possession  only,  not  the  proiK-rty. 
Jbid  ,  467.  par.  2.  .  . 

A  soldier  was  charged  with  the  larceny  of  a  certain  sum  of  moni^  in  currency  from 
the  post-trader's  store.'  At  his  arrest  iv  sum  in  currency  of  about  the  same  auKuint.  but 
not  capable  of  identification  as  tlie  sjime  nionev.  was  found  on  his  ]H'rsoii.  and,  being 
claimed  by  the  trader  was  turned  over  to  him  the  soldier  was  then  tried  and  acquitted. 
Jf,l<f  that  the  trader  was  legally  liable  to  be  called  upon  to  refund  the  amount  received. 
Jbid..  par.  ::. 

Where  a  State  .statute  impos<Ml  tiie  disability  of  loss  of  the  right  of  suffrage  upon 
persons  convicted  of  Ijirceny,  /le/d  that  the  conviction  intended  was  conviction  by  a  civil 
court,  and  that  a  conviction  of  tiiis  crime  by  a  court-martial  (convened  within  the  State) 
would  not  work  such  disability,  or— to  enaiile  the  soldier,  upon  liis  discharge,  to  vole  m 
the  State — iiMpiire  a  pardon  bv  the  I'resident.      [hid.,  par.  4. 

Held  that  grass  cut  for  hay  upon  a  military  reservation  was  in  law.  at  least  if  not  at 
once  removed,  personal  propertv,  so  that  a  person  wrongfidly  cutting  such  grass  and 
allowing  it  to  remain  till  it  became  hav,  or  for  any  material  period  before  asportation, 


450  MILITARY  LAW. 

Robbery. — Robbery  is  the  felonious  taking  of  goods  from  the  person  of 
another,  or  in  his  presence,  by  violence  or  by  putting  him  in  fear,  and 
against  his  will.'  Robbery  is  thus  seen  to  be  an  aggravated  form  of  larceny; 
the  aggravation  consisting  in  the  taking  of  property  from  the  person  of  its 
owner  by  violence  or  intimidation.  The  offense,  as  to  its  essential  elements, 
is  the  same  as  larceny;  but  there  must  be  in  addition  some  actual  violence 
inflicted  upon  the  person  robbed,  or  such  demonstrations  or  threats,  and 
under  such  circumstances,  as  to  create  in  him  reasonable  apprehension  of 
bodily  injury.  It  is  sufficient  in  this  offense  that  instead  of  actual  violence 
the  wrong-doer  creates  in  his  victim  a  reasonable  apprehension  of  it,  and  thus 
secures  his  object.' 

Embezzlement. — Embezzlemejit  is  a  species  of  larceny  in  the  nature  of  a 
criminal  breach  of  trust,  and  consists  in  the  fraudulent  conversion  of  prop- 
erty to  his  own  use  by  an  agent,  clerk,  servant,  or  in  general  by  any  person 
acting  in  a  fiduciary  capacity.  In  order  to  constitute  tlie  crime,  it  is  neces- 
sary that  the  property  embezzled  .should  have  come  lawfully  into  the  hands 
of  the  embezzler,  and  by  virtue  of  the  position  of  trust  he  occupies  in  rela- 
tion to  the  person  whose  property  he  takes.  ^  In  this  respect  it  differs  from 
the  crime  of  larceny,  in  which  the  property  is  unlawfully  taken  and  retained.* 

The  fiduciary  relation  which  is  essential  to  the  offense  of  embezzlement 
is  sufficiently  expressed  by  the  averment  that  the  property  was  delivered  to 
the  defendant  upon  the  trust  and  confidence  that  he  would  return  it  to  the 
owner  on  demand.  A  fraudulent  conversion  to  the  defendant's  own  use 
would  be  an  embezzlement  whether  demand  were  made  or  not,  and  such 
demand  therefore  need  neither  be  averred  nor  proved.^  The  charges  should 
also  set  forth  that  the  defendant  was  the  officer  or  agent  of  the  United 
States,  or  the  clerk  or  servant  of  some  person  or  corporation,  and  that  the 
money  or  property  embezzled  came  into  his  possession  by  virtue  of  such 
emplovment.  As  the  offense  involves  fraudulent  conversion,  that  is,  as  there 
must  be  a  conversion  or  cliange  from  a  lawful  to  an  unlawful  possession,  the 
lawful  object  for  which  the  money  or  property  was  entrusted  to  the  defend- 
ant must  also  beset  forth  and  described.  Ownership  should  be  averred; 
such  ownership  being  in  general  in  the  United  States,  or  the  person  toward 


was  chargeable  with  a  stealing  of  property  of  the  United  States  under  the  Act  of  March 
3,  1875.  c'144,  wiiirh  makes  such  stealing  a  felony  punishable  by  fine  and  iraprlsonment. 
Dig.  >T.  A.  Gon..  46fi.  par.  1. 

'  TI.  Bishop,  Crim.  Law,  §§  1156,  1166. 

«  II.  ilAd.,  %%  1166-llTG. 

s  Dodd  vs.  Hamilton,  3  Taylor,  31  ;  State  vs.  Hawkins,  8  Porter,  461  ;  Com.  vs.  Low, 
Thaoh.  Crim.  Cases,  477  ;   U.  S.  r.s.  Dnrkee,  1  McAllister,  196. 

■*  Cora.  vs.  Hussey,  111  Mass..  4:^.2  ;  Coin.  m.  Butterick,  100  Mass.,  1  ;  Com.  vs.  King, 
9  Cashing.  284.  The  offense,  wherever  it  exists,  is  statutory,  being  unknown  to  the 
common  law.  The  scope  of  the  offen.se  of  embezzlement  lias  been  considerably 
extended,  by  Federal  .statutes,  in  its  application  to  certain  unlawful  acts  respecting  the 
public  money  and  prf)perty  committed  by  public  officers. 

s  Com.  vs.  Hussey,  111  Mass.,  432  ;  Com.  vx.  Tuckerman,  10  Gray,  173. 


TUE  AHTICLES  OF   WAR.  451 

whom  the  fidnciary  relation  exists.  Where,  however,  the  nature  of  the 
relation  is  such  as  to  have  made  it  the  duty  of  tlie  accused  to  carry  or  trans- 
port the  })ro])erty  from  one  jserson  to  another  with  a  view  to  a  transfer  of 
ownership,  or  wliere  tlic  embezzlement  took  jdace  while  in  transit,  such 
ownership  may  he  alleged  in  either  i)arty  to  the  transaction.'  The  frand- 
nlent  conversion  may  he  consummated  in  any  manner  capable  of  effecting 
it;  and  its  commission  is  a  matter  of  fact,  and  not  of  pleading,  when  tlie 
indictment  charges  that  the  defendant  did  embezzle,  fraudulently  misajtply, 
and  convert  to  his  own  use  the  pro])erty  entrusted  to  him.'' 

Statutory  Embezzlements. — The  Revised  Statutes  of  the  United  States 
contain  a  number  of  statutory  embezzlements,  the  offense  in  most  cases 
having  to  do  with  certain  wrongful  or  })rohibited  acts  committed  by  disburs- 
ing officers  in  connection  with  the  custody  or  disbursement  of  the  public 
funds.' 

The  Act  of  March  3,  1875,  contains  the  requirement  that  "  any  person 
Avho  shall  embezzle,  steal,  or  purloin  any  money,  property,  record,  voucher, 
or  valuable  thing  whatever,  of  the  moneys,  goods,  chattels,  records,  or 
property  of  the  United  States,  shall  be  deemed  guilty  of  felony,  and  on  con- 
viction thereof  before  the  district  or  circuit  court  of  the  United  States  in 
the  district  wherein  said  offense  may  have  been  committed,  or  into  which  he 
shall  carry  or  have  in  posssession  said  property  so  em])ezzled,  stolen,  or 
()urloined,  shall  be  punished  therefor  by  imprisonment  at  hard  labor  in  the 
penitentiary  not  exceeding  five  years,  or  by  a  fine  not  exceeding  five 
thousand  dollars,  or  both,  at  the  discretion  of  the  court  before  which  he 
shall  be  convicted.'  The  same  statute  also  contains  a  provision  to  the 
effect  "  that  if  any  person  shall  receive,  conceal,  or  aid  in  concealing,  or 
have,  or  retain  in  his  possession  with  intent  to  convert  to  his  own  use  or 
gain,  any  money,  property,  record,  voucher,  or  valuable  thing  whatever,  of 
the  moneys,  goods,  chattels,  records,  or  property  of  the  T'nited  States, 
which  has  theretofore  been  embezzled,  stolen,  or  purloined  from  the  United 
States  by  any  other  person,  knowing  the  same  to  have  been  so  embezzled, 
stolen,  or  purloined,  such  person  shall,  on  conviction  before  the  circuit  or 
district  court  of  the  United  States  in  the  district  wherein  he  may  have  such 
property,  be  punished  by  a  fine  not  exceeding  five  thousand  dollars,  or 
imprisonment  at  hard  labor  in  the  penitentiary  not  exceeding  five  years,  one 
or  both,  at  the  discretion  of  the  court  before  which  he  shall  be  convicted ; 
and  such  receiver  may  be  tried  either  before  or  after  the  conviction  of  the 
principal  felon;  but  if  the  party  has  been  convicted,  then  the  judgment 
against  him  shall  be  conclusive  evidence  in  the  prosecution  against  euch 

'  Riley  v».  State,  32  Texas,  763  :  Com.  vs.  Norton,  11  Allen,  110. 

*  Leonard  rs.  State.  7  Tex.  App.,  417. 

»  See  Settions  5488-5497,  Itevised  Statutes  ,  see.  also,  ibid.,  §§  3618-3652. 

*  Sec.  1,  Act  of  March  3,  1875  (18  Stat,  at  Large,  479). 


452  MILITARY  LAW. 

receiver  that  the  property  of  the  United  States  therein  described  has  been 
embezzled,  stolen,  or  purloined."  ' 

The  statute  above  cited  confers  upon  larceny  and  embezzlement  tlie 
quality  of  felony,  and  a  person  so  convicted  suffers  such  i)enalties,  attaching 
to  that  status,  as  are  imposed  or  warranted  by  the  laws  of  the  United  States. 
Receiving  Stolen  Goods. — This  offense  is  defined  in  Section  5357  in  the 
following  terms:  "  Every  person  who,  upon  the  high  seas  or  in  any  place 
under  the  exclusive  jurisdiction  of  the  United  States,  buys,  receives,  or  con- 
ceals any  money,  goods,  bank-notes,  or  other  thing  which  may  be  the  subject 
of  larceny,  and  which  has  been  feloniously  taken  or  stolen  from  any  other 
person,  knowing  the  same  to  have  been  taken  or  stolen,  shall  be  punished  by 
a  tine  of  not  more  than  one  thousand  dollars,  and  by  imprisonment  at  hard 
labor  not  more  than  three  years." 

The  element  of  intent  in  this  offense  is  replaced  by  knowledge  on  the 
part  of  the  accused  that  the  goods  received  were  stolen.  The  "  knowing  the 
Same  to  have  been  taken  or  stolen  "  constitutes  the  guilty  knowledge  which 
is  essential  to  a  conviction  of  the  crime  above  described. 

Itape. Rape  is  the  violation  or  carnal  knowledge  of  a  woman,  forcibly 

and  a^-ainst  her  will.'  The  offense  must  have  been  committed  by  a  male 
person  with  requisite  physical  capacity;  for  this  reason  a  boy  under  fourteen 
is  presumed  to  be  incapable  of  its  commission.  In  England  the  presumption 
of  incapacity  is  conclusive;  in  some  jurisdictions  in  the  United  States  it  may 
be  rebutted  by  testimony  showing  capacity.  There  must  be  want  of  consent 
on  the  part  of  the  woman,  and  the  offense  may  be  committed  upon  the 
person  of  a  prostitute.  Girls  under  a  certain  age,  which  is  regulated  locally 
by  statute,  are  held  to  be  incapable  of  giving  consent.  The  fact  of  penetra- 
tion is  an  essential  ingredient  of  the  offense,  as  is  the  use  of  force  on  the  part 
of  the  offender.  Tlie  force  used  may  be  either  actual  or  constructive,  but 
must  be  sufficient  to  accomplish  the  purpose.' 

Assault  and  Battery  with  Intent  to  Commit  Rape.— To  constitute  the 
aggravated  assault  here  defined,  the  assault  must  be  accompanied  with  the 
specific  intention  to  rape;  that  is,  to  have  carnal  knowledge  of  the  woman 
without  her  consent,  and  by  the  use  of  such  force  as  should  be  sufficient  to 
overcome  such  resistance  as  the  woman  could  make.'  The  nature  of  the 
charge  presupposes  that  the  intent  is  not  carried  out.  Tt  is  therefore 
necessary  that  the  acts  and  conduct  of  the  prisoner  should  be  shown  to  be 
such  that  there  can  be  no  reasonable  doubt  as  to  the  criminal  intent.  If 
these  acts  and  conduct  are  equivocal,  or  equally  consistent  with  the  absence 

'  Sec   2   Act  of  March  3,  187")  (18  Stat,  at  Lar?e.  474). 

'  Charles  vs.  State,  6  Erig.,  389  ;  Cato  vs.  State,  9  Fla     163.  r>       ,      o^ 

2  Cato  vs.  Stale,  9  Fla.,  163  ;  State  vs.  Biirgdoif,  53  Mo.,  65  ;  Strange  vs.  People,  24 

"♦Shields  vs.  State,  32  Tex.  Crim.  Rep.,  502;  Am.  and  Eng.  Encyc.  of  Law,  2d  En., 
vol.  2,  pp.  973-975. 


THE  ARTICLES  OF  WAR.  453 

of  the  felonious  intent  clmrged,  tlien  it  is  clear  that  they  are  insufficient  to 
warrant  a  verdict  of  guilty.' 

Mayhem. — At  the  common  law  the  offense  of  mayhem  consisted  in  the 
act  of  unlawfully  and  violently  depriving  another  of  the  use  of  such  of  his 
members  as  might  render  him  less  able,  in  fighting,  either  to  defend  himself 
or  annoy  his  adversary.'  By  statute  in  most  of  the  .States  the  scope  of  this 
offense  has  been  extended  so  as  to  include  all  malicious  injuries  to  the 
person,  the  origiiuil  condition  that  the  part  injured  should  have  been  use- 
ful in  fighting  having  been  quite  lost  sight  of.  Before  the  Conquest  such 
offenses  formed  an  elaborate  and  extensive  branch  of  the  law,  but  the 
offenses  were  treated  as  torts  rather  than  crimes.  Some  of  the  laws  set  forth 
with  the  utmost  minuteness  and  particularity  the  compensation  to  be  made 
for  every  sort  of  bodily  injury.  After  the  Conquest  the  offense  of  woundino- 
seems  to  have  been  regarded  rather  as  a  crime  tban  as  a  tort  or  civil  injury, 
and  to  have  been  defined  and  punished  as  such.' 

Although  forgery  and  perjury  are  not  enumerated  in  the  58th  Article  of 
War,  they  are  defined  in  connection  with  the  offenses  already  described. 

Forgery. — Forgery  is  the  false  or  fraudulent  making  or  alteration  of  an 
instrument  with  intent  to  defraud  or  to  prejudice  the  right  of  another. 
The  essence  of  the  offense  is  the  intent  to  defraud,  and  to  constitute  forgerv 
there  must  have  been  a  jierson  in  existence  at  the  time  of  the  execution  of 
the  fraudulent  instrument  who  was  capable  of  being  defrauded  therebv. 
The  offense  may  consist  in  the  forgery  of  an  instrument,  as  in  the  case  of  a 
check,  note,  or  bill  of  exchange,  or  of  a  signature  only,  or  of  an  instrument 
partly  engraved  and  partly  written,  like  a  bank-note,  or  of  an  instrument 
wholly  engraved,  as  iu  the  case  of  a  railroad  or  steamship  ticket.* 


'  Com.  vs.  Merrill,  14  Gray  (Muss.),  415  ;  Am.  and  Eug  Eucyc.  of  Law,  2d  Ed  vol 
2,  pp.  973-975 

-  4  Bliickstone  Com.,  205;  U.  S.  m.  Oskins,  4  Cranch  C.  C,  98;  II.  Bishop  Crim 
Law,  §  1001. 

^  III.  btepheu's  Hist.  Crim.  Law,  108,  and  cases  cited.  Section  5348  of  the  Revised 
Statutes  contains  a  statutory  di-finition  of  this  offense  when  committed  on  the  \ng\\  seas 
or  at  places  within  tlie  exclusive  jurisdiction  of  the  United  States.  "Everv  perscm  who, 
within  any  of  the  places  upon  the  land  under  the  exclusive  jurisdiction  uf  the  United 
States,  or  who.  upon  the  liigii  seas,  in  any  vessel  helonginsj  to  the  United  States,  or  to  any 
citizen  thereof,  maliciously  cuts  off  the  ear,  cuts  out  or  disables  tlie  tonfjue.  puts  out  an 
eye,  slits  the  nose,  cuts  off  the  nose  or  lip,  or  cuts  off  or  disables  any  limb  or  member  of 
any  person.,  with  intent  to  maim  or  disfigure  such  penson,  shall  be  imprisoned  at  hard 
labor  not  more  than  seven  years,  and  tined  not  more  than  one  thousand  dollars." 

••  Stale  vs.  Pierce.  8  Iowa.  I'M;  State  t-.v.  Thomp.son,  1'.)  ibid.,  299;   I'eople  r*."  Brother- 
ton.  47  Cal..   388;  U.  S.  vs.  Jolly,  37  Fed.    Rep.,  108;  In  re  Benson,  34  ibid.,  649-   U  S 
vs.  Moore,  60  ibid..  738.  740. 

A  disbursing  officer  who  pays  out  money  of  the  United  States  upon  vouchers  that 
are  forged  will  in  general  n\ake  himself  liable  for  the  amount  paid.  Thus  where 
such  an  officer  paid  out  public  money  upon  tr;insportation  requests  addressed  to  a 
railroad  comp.'iny  and  acceiUeil  by  it,  which  retiucsts  had  been  fraudulently  piepared 
by  a  (juartermaster's  clerk  who  liad  forged  the  name  of  the  quartermaster  thereto, 
held  that  the  disbursing  officer  was  responsible  for  the  anutunt  paid.  Di"-  J  A  Gen  ' 
424,  par.  1. 

A  paymaster  drew  his  check  in  favor  of  a  dischargeil  soldier  for  the  amount  due  him 


454  MILITARY  LAW. 

It  sometimes  happens  that  signatures  and,  in  some  cases,  entire  instrn- 
ments  are  forged  to  which  no  quality  of  property  attaches;  to  this  class 
belong  passes,  permits  in  writing  to  be  absent  from  a  command,  or  other 
privileges  of  a  merely  personal  character.  Such  conduct,  while  a  serious 
military  offense,  doe§  not  conform  to  the  definition  of  forgery,  since  the 
forged  instrument  cannot  operate  to  defraud,  or  to  prejudice  the  property 
rights  of  another.  Like  forgery  itself  it  slionld  therefore  be  charged  as  a 
violation  of  the  62d  Article  of  War. 

Perjury. — Perjury  may  be  generally  defined  as  false  swearing,  and 
includes  the  breach  of  the  solemn  sanction  of  an  oath  or  the  making  of  a 
false  oath.  When  a  witness  to  whom  a  lawful  oath  has  been  administered  iu 
a  judicial  proceeding  swears  falsely  in  a  matter  material  to  the  issue,  he  is 
said  to  commit  perjury.  It  is  essential  to  the  oifense  that  the  oath  should 
have  been  duly  administered  by  a  person  having  authority  to  do  so  and  in 
the  course  of  a  judicial  proceeding.'  In  most  jurisdictions  there  may  be 
false  swearing  amounting  to  perjury  in  some  forms  of  non-judicial  proceed- 
ings. Such  an  offense,  however,  is  strictly  statutory  in  character,  and  is  not 
included  in  the  definition  of  the  offense  at  common  law.  The  false  oath 
must  be  taken  willfully,  with  some  degree  of  deliberation,  and  with  intent 
to  impede  or  otherwise  interfere  with  the  due  administration  of  justice.  It 
must  be  taken  positively  and  directly,  and  must  iu  most  cases  relate  to  the 
existence  or  non-existence  of  a  material  fact;  for  if  a  man  swears  to  what  he 
believes  or  remembers,  he  is  not  in  general  guilty  of  perjury;  but  if  he  swears 

on  final  settlement.  The  piiyee  indorsed  the  check  in  blank,  and  the  paymaster 
then,  accordiui?  to  a  common  practice,  sub-indorsed  it,  adding  liis  olficial  designation, 
merely  for  the  purpose  (thougli  the  indorsement  did  not  so  state)  of  identifying  the  sig- 
nature of  the  payee.  The  writing  hi  the  body  of  the  check  was  then  removed  or  altered 
and  the  check  tilled  in  for  a  very  much  greater  amount.  The  check  thus  raised  was  on  the 
next  day  presented  to  and  paid  by  the  Assistant  Treasurer  at  New  York.  ILid  that 
while  in  the  hands  of  a  bona-fide  indorsee  the  liability  of  the  paymaster  would  have 
been  that  of  a  regular  indor.ser".  parol  evidence  m.t  being  then  admissible  to  show  that 
he  indorsed  merely  for  identification;  *  yet  the  loss  in  this  case  legally  fell  upon  the  Assist- 
ant Treasurer,  whose  liability  was  the  same  as  that  of  a  bank  which  pays  a  forged  check 
in  a  case  in  which  the  forgery  has  not  been  facilitated  by  the  negligence  of  the  drawer.f 
Ibid.,  par.  2.  „      _,, 

'  Bishop  Crim.  Law  (7th  ed.),  §  1020  :  U.  S.  vs.  Ambrose,  2  Fed.  Rep.,  556.  The 
offense  is  also  defined  in  Section  5392  of  the  Revised  Statutes  in  the  following  terms  : 
"Every  person  who,  having  taken  an  oath  before  a  competent  tribunal,  officer,  or  per- 
son, in  any  case  in  which  a  law  of  the  United  States  authorizes  an  oath  to  be  ailminis- 
tered,  that  he  will  testify,  declare,  liepose.  or  certify  truly,  or  that  any  written  testimony, 
declaration,  deposition,  or  certificate  by  him  subscribed  is  true,  willfully  ami  contrary  to 
such  oath  states  or  subscribes  any  material  matter  which  he  does  not  believe  to  be  true, 
is  guilty  of  perjury,  and  shall  be  punished  by  a  fine  of  not  more  than  two  thousand  dol- 
lars, and  by  imprisonment,  at  hard  labor,  not  more  than  five  years  ;  and  shall,  moreover, 
thereafter  be  incapable  of  givinL--  testimony  in  any  court  of  the  United  States  imtil  such 
time  as  the  judgment  against  liim  is  reversed."  See,  also,  U.  S.  rs.  Passmore,  4  Dall.. 
872-  U.  S.  vs.  Bailey.  9  Pet.,  238;  U.  S.  vs.  Wood,  14  Pet.,  430;  U.  S.  vs.  Nickersen,  17 
How.,  204;  U.  S.  vs.  Clark,  1  Gallis,  497;  U.  S.  vs.  Kendrick,  2  Mass.,  60. 

*  Daniel  on  Negotiable  Instruments,  vol.  i.  p.  19. 
t  Byles  on  Bills  (Sharswood's  Ed.),  337. 


TUE  ARTICLES   OF    WAR.  455 

that  he  believes  a  fact  to  be  true  which  he  knows  to  be  false,  lie  u  gniltv  of 
perjury.  The  fact  sworn  to  should  be  material;  for  if  such  fact  have  uo 
bearin^T  upon  the  issue,  the  adniiuistratioTi  of  justice  has  not  been  atfected 
injuriously  and  there  lias  not  been  })erjury.  Suhuvnatioti  of  perjury  is  the 
offense  of  procuring  another  to  talve  such  a  false  oath  as  constitutes  perjury 
in  the  principal.' 

Perjury  in  Military  Practice. — False  swearing  by  a  witness  before  a 
military  court  is  not  perjury  at  common  law,  nor  is  it  made  a  specific  offense 
by  any  of  the  Articles  of  War.^  But  though  jierjury  is  not  made  a  specific 
offense  by  the  military  code,  false  swearing  by  an  officer  or  soldier  before  a 
court-martial  is  "conduct  to  the  prejudice  of  good  order  and  military  disci- 
pline," and  is  cognizable  and  punishable  as  such  under  the  general  ((J2d) 
Article.  And  a  charge  of  "perjury"  in  connection  with  a  specification 
setting  forth  a  false  swearing  upon  a  court-martial  will  constitute  a  sufficient 
allegation  of  an  oft'ense  under  this  Article.' 

It  was  an  essential  prerequisite  to  a  conviction  of  this  offense  at  common 
law  that  the  commission  should  have  been  established  by  the  testimony  of  at 
least  two  competent  witnesses.  This  to  secure  the  preponderance  necessary 
to  overcome  the  reasonable  doubt.' 

'  The  offense  of  siibornaiiou  is  defined  in  Section  5393,  Revised  Statutes,  wliicli  pro- 
vides that  "every  person  who  procures  .'uiolher  to  conunit  any  perjury  iseuiityof  sub- 
ornation of  perjury,  and  punishable  as  iu  the  preceding  section  prescribed."  See,  also, 
U.  S.  ts.  Bailey,  9  I'et.,  238;  U.  S.  vs.  Moore,  2  Lowell,  232  ;  U.  S.  vs.  Stanley,  6  McLean, 
409  ;  U.  S.  vs.  Perdue,  4  Fed.  Rep.,  897  ;  U.  S.  vs.  Mayer,  Deady,  127  ;  U.  S.  vs.  Smith. 
1  Sawy.,  277;  U.  S.  vs.  Coons,  1  Bond,  \. 

■  Perjury  as  a  criminal  offense  against  the  United  States  is  defined  in  Section  5392, 
Revised  Statutes.  In  England  false  swearing  before  a  court-martial  appears  to  be  re- 
garded as  being  indictable  as  perjury  ai  common  law.  See  Queen  vs.  Ileane,  4  B.  &  S. 
U47;  also  Clode,  Military  Forces  of  the  Crown,  vol.  i.  pp.  169,  552-4. 

A  special  statutory  provision  making  a  false  oath  before  a  naval  court-martial  indict- 
able as  perjury  was  (lontained  in  the  Articles  for  the  government  of  the  navy  estab- 
lished by  the  Act  of  .Jul}'  17,  18()2,  c.  204,  and  appears  still  to  subsist  in  the  41st  of  the 
present  Articles  and  Sec.  1023,  Rev.  Sts.  There  is  no  statute  relating  specifically  to 
false  swearing  before  a  court-martial  of  the  r/?v«7/.  The  general  provision,  however,  of 
Sec.  5392,  Rev.  Sts.,  providing  for  the  punishment  of  perjury,  is  broad  enough  to  in- 
clude a  case  of  false  swearing  as  to  "material  matter"  before  any  court-martial  equally 
as  before  a  civil  tribunal  of  the  United  States.  Tiuis  a  military  person  guilty  of  niaking 
a  false  material  statement  under  oath  as  a  witness  upon  a  military  trial  would  be  amen- 
able not  only  to  a  military  charge,  but  apparently  also  to  indictment  in  theU.  S.  District 
Court. 

»  Dig.  .J.  A.  Gen.,  585.  par.  1;  ibid.,  407,  par.  1. 

*  Ihiii.,  586,  par.  2.  HeUl  that  a  recruit  who  made  a  false  statement  as  to  his  age,  in 
a  sworn  declaration,  was  not  indictable  for  perjury  under  Sec.  5392.  Rev.  Sts.  There 
is  no  l;iw  reciuiring  the  recruit's  declaration  as  to  his  age  to  be  under  oath.  And  in  the 
usual  form  of  the  oath  of  enlistment  prescribed  by  Article  2,  the  statement  of  age  is  not 
properly  a  part  of  the  oath,  but  matter  of  description  only.     Ibid.,  par.  3. 

Where  the  prosecution  introduced  but  one  witness  to  prove  the  fal.<;ity  of  the  testi- 
mony under  the  charge  of  perjury,  and  that  witness  was  contradicted  as  to  a  material 
point,  adrised  that  the  conviction  and  .sentence  adjudged  by  the  court  be  disapproved  on 
account  of  failure  of  proof.     J  hid..  407,  par.  2. 

Under  this  cliarge  testimony  which  consists  of  answers  to  questions  coing  to  the 
credit  of  a  particular  witness,  or  of  other  witnesses  whom  he  corroborated,  is  "  material 
to  the  issue."     Ibid.,  par.  1. 


456  MI  LIT  ART  LAW. 

False  swearing  before  a  court-martial  not  being  perjury  at  common  law, 
the  rales  as  to  the  character  and  amount  of  the  evidence  necessary  to  sustain 
an  indictment  for  perjury,  thougli  they  may  profitably  be  referred  to,  need 
not  govern  the  proof  of  the  military  oifense.  Such  oli'ense  will  ordinarily 
be  sufficiently  established  by  the  written  record  (or,  in  its  absence,  by 
secondary  proof)  of  the  testimony  as  given,  together  with  any  reliable  and 
satisfactory  evidence  that  the  same  was  knowingly  false.' 

Article  59.  When  any  officer  or  soldier  is  accused  of  a  capital  crime,  or 
of  any  offense  against  the  person  or  property  of  any  citizen  of  any  of  the 
United  States  tvhich  is  punishable  by  the  latos  of  the  land,  the  commanding 
officer,  and  the  officers  of  the  regiment,  troop,  battery,  company,  or  detach- 
ment to  lohich  the  person  so  accused  belongs,  are  required,  except  in  time  of 
war,  upon  application  duly  made  by  or  in  behalf  of  tJ/e  j)arty  injured,  to  use 
their  utmost  endeavors  to  deliver  him  over  to  the  civil  magistrate,  and  to  aid 
the  officers  of  justice  in  apprehending  and  securing  him,  in  order  to  bring 
him  to  trial.  If,  upon  such  application,  any  officer  refuses  or  loillfuUy 
neglects,  except  in  time  of  loar,  to  deliver  over  such  accused  person  to  the  civil 
magistrates,  or  to  aid  the  officers  of  justice  in  apprehending  him,  he  shall  be 
dismissed  from  the  service. 

Article  18  of  the  British  Code  of  1717  required  the  commanding  officer 
of  any  regiment  to  surrender  to  the  civil  authority  for  trial  any  officer  or 
soldier  under  his  command  who  had  committed  a  crime  punishable  "by  the 
known  laws  of  the  laud."  The  Mutiny  Act  for  the  year  1718  contained  the 
requirement  "that  any  soldier  accused  of  a  criminal  offense  punishable  by 
the  known  laws  of  the  land  should  be  given  up  to  the  civil  magistrate  by 
the  commanding  officer,  under  the  penalty  of  his  being  cashiered  for  neglect 
or  refusal."  ''  This  requirement  was  coupled  with  the  provision  that  "  no 
person  convicted  by  the  civil  magistrate  should  be  liable  to  court-martial 
punishment,  save  that  of  cashiering,  for  the  same  offense."  The  provision 
appears  in  substantially  its  present  form  as  Article  1,  Section  2,  of  the 
British  Code  of  1774,  as  Article  1,  Section  10,  of  the  American  Articles  of 
1776,  and  as  No.  59  of  the  Articles  of  1800.  The  clause  making  the  pr.o- 
vision  applicable  in  time  of  peace  only  was  incorporated  in  the  Article  in 
18G3.' 

Purpose  of  the  Enactment. — The  Constitution  of  the  United  States,  like 
those  of  the  several  States,  recognizes,  as  a  fundamental  principle,  that  such 
military  jurisdiction  as  is  created  by  its  authority  is  to  be  exercised  in  strict 
subordination  to  the  civil  power.'     The  law  also  recognizes  the  fact  that 

'  Diir.  J.  A.  Gen.,  58fi,  par.  2. 

»  Clode,  Mil.  Law.  58,  54. 

'  Section  30,  Act  of  March  3,  1863  (12  Stat,  at  Large   736). 

■*  Dow  Tfi.  .Tohn.ston,  100  U.  S.,  1G9.  Tlii.s  Article  is  a  recognition  of  the  general 
principle  of  the  siihoniination  of  tlie  military  to  the  civil  power,  and  its  main  purpose 
evidently  is  to  facilitatf,  in  cases  of  offenders  against  the  local  civil  statutes  wLu  happen 
to  be  connected  with  the  army,  the  execution  of  those  statutes  where,  as  citizens,  such 


THE  AiniCLES   OF    WAR.  457 

military  persons  constitute  a  class  apart,  and  are  subject  to  rules  differing 
in  many  material  rt'.^pects  from  those  regulating  the  conduct  of  the  general 
hody  of  citizens.  Tiic  military  status,  however,  confers  no  special  immuni- 
ties upon  members  of  the  military  establishment,  who  are  in  general  subject 
to  the  hiws  in  the  same  manner  and  to  precisely  the  same  extent  as  otlier 
citizens  or  inhabitants.  Whoever,  therefore,  violates  the  criminal  law  of  the 
United  States  or  that  of  a  State  is  subject  to  arrest,  trial,  and  punishment 
therefor.  If  such  offender  be  a  citizen,  the  local  law  prescribes  the  methods 
of  such  arrest;  if,  on  the  other  hand,  he  be  a  military  person  serving  under 
the  immediate  command  of  a  military  superior,  the  59th  Article  of  War 
prescribes  a  method  of  procedure  in  accordance  Avith  which  his  arrest  must 
be  effected. 

In  the  application  of  this  statute  several  questions  nuiy  arise,  which  will 
be  discussed  in  order. 

1.  The  Article  relates  to  a  military  person  who,  at  the  time  the  arrest  is 
sought,  is  a  member  of  an  organized  command;  it  matters  not  whether  that 
command  be  stationary,  as  in  the  case  of  a  post  or  camp,  or  movable,  as 
would  be  the  case  of  a  column  on  the  march.  An  isolated  member  of  the 
military  establishment  (an  officer  on  leave  of  absence,  or  an  enlisted  man  on 
furlough,  for  example)  who  commits  an  offense  may  be  arrested  by  the 
l)roper  representative  of  the  local  authority  whose  law  or  ordinance  has  been 
violated.' 

2.  The  provisions  of  the  Article  are  applicable  to  an  officer  or  soldier  -who 
is  charged  with  a  crime  or  offense  "which  is  punishable  by  the  laws  of  the 
land."  This  term  has  been  held  to  include  not  only  offenses  against  the 
laws  of  a  State,  but  violations  of  nnmicipal  by-laws  and  city  ordinances;  it 
does  not  extend,  however,  to  offenses  committed  against  the  United  States, 
or  to  offenses  committed  wdthin  territory  over  which  the  United  States  exer- 
cises exclusive  jurisdiction.^ 

persons  lemiiin  legally  amenable  to  arrest  and  trial  thereunder.  Protection  to  military 
persons  from  civil  arrest  is  not  the  object  of  the  Article.     Dig.  J.  A.  Gen..  50,   par.  1. 

'  Dig.  .1.  A.  Gen.,  50,  par.  1;  Udd.,  '245.  par.  W.  4.  In  Ex  parte  .Mclioberts.  16  Iowa, 
GOO.  GO;J,  it  \v;is  held  thai  ilie  provisions  of  the  Article  apply  t)nly  lo  otlicers  and  soldiers 
while  within  the  immediate  control  and  jurisdiction  of  the  military  authorities,  and 
therefore  do  not  ajiply  to  a  case  of  a  soldier  absent  on  furlough;  but  thiit  such  a  soldi',  r, 
pending  his  furlough,  may  be  arrested  in  the  same  manner  as  any  civilian. 

'0[Mn.  Att.-Gc^n.  of  Nov.  20.  1894,  published  in  Circular  No.  1.5.  A.  G.  O.. 
Dec.  ().  1894;  DIl'.  J.  A.  Gen.,  50,  p:ir  4;  K.t  parte  Uright.  1  Utah.  145.  This 
case,  however,  is  regarded  as  going  too  far,  in  holding  that  tliouLdi  a  soldier  may.  without 
api^lication  to  the  nnlitary  autiiorities.  be  arrested  and  dttained  by  the  civil  authcvities 
for  tiie  violation  of  a  city  ordinance,  he  may  not  be  tried  or  punished  bv  tlie  latter,  but  ^ 
for  that  purpose  must  be  surrendered  lo  the  military  commander.  Unless  the  offense 
of  such  a  soldier  directly  prejudiced  milii.nry  discipline  he  could  not  be  tried  for  the 
same  at  all  by  a  military  court;  and  if  it  did."  he  would  be  triable  oidy  for  the  breach  of 
ili.scipline,  leaving  liim  still  amenable  to  tlie  local  law  for  the  civil  disorder. 

For  exemption  of  enlisted  men  from  jirrest  on  mesne  process,  or  in  execution  for 
debt  in  certain  cases,  in  accordance  witii  Sec.  1237,  Rev.  Stat.,  see  White  vs.  Lowther.  3 
Ga.,  397;  Moses  vs.  Willitt,  3  Strobh;irt  (S   C),  210;  Ray  ts.  Hogeboom,  11  Johns.,  433. 

The  term  "any  of  the  United   States."   employed  in  this  Article,  held  properly  to 


45S  MILITARY  LAW. 

3.  The  Article  requires  that  the  application  shall  be  "  duly  made  "  and 
*'  by  or  in  behalf  of  the  party  injured."  The  commanding  officer,  before 
surrendering  the  party,  is  entitled  to  require  that  the  "  application  "  shall 
be  so  specitic  as  to  identify  the  accused  and  to  show  that  he  is  cliarged  with 
a  particular  crime  or  offense  wliicli  is  within  the  class  described  in  tlie 
Article.  Where  it  is  doubtful  whether  the  application  is  made  in  good  faith 
and  in  the  interests  of  law  and  justice,  the  commander  may  demand  that 
the  application  be  especially  explicit  and  be  sworn  to;  and  in  general  the 
preferable  and  indeed  only  satisfactory  course  will  be  to  require  the  produc- 
tion, if  practicable,  of  a  due  and  formal  warrant  or  writ  for  the  arrest  of  the 
party.' 

Procedure. — The  commanding  officer,  before  surrendering  the  party,  is 
entitled  to  re(iuire  that  the  "  application"  shall  be  so  specific  as  to  identify 
the  accused  and  to  show  that  he  is  charged  with  a  particular  crime  or  offense 
which  is  within  the  class  described  in  the  Article.  Wiiere  it  is  doubtful 
whether  the  application  is  made  in  good  faith  and  in  the  interests  of  law  and 
justice,  the  commander  may  demand  that  the  application  be  especially 
explicit  and  be  sworn  to;  and  in  general  the  preferable  and  indeed  only 
satisfactory  course  will  be  to  require  the  production,  if  practicable,  of  a  due 
and  formal  warrant  or  writ  for  the  arrest  of  the  party.'  The  application 
required  by  the  Article  should  be  made  in  a  case  where  the  crime  was  com- 
mitted by  the  party  before  he  entered  the  military  service,  as  where  it  was 
committed  by  him  while  in  the  service.'  In  the  former  case  a  more  exact 
identification  may  perhaps  reasonably  be  required.* 

The  provisions  of  the  Article  are  applicable  not  only  Avhen  the  officer  or 
soldier  is  accused  of  a  crime  or  offense  "  which  is  punishable  by  the  laws  of 
the  land,"  i.e.,  by  the  public  law — statutes  or  constitution — of  the  particular 
State,  but  his  surrender  may  be  similarly  demanded  for  the  violation  of  a 
municipal  ordinance.' 

The  party  should  be  surrendered  upon  proper  application,  though  the 
offense  be  one  of  which  a  military  court  has  jurisdiction  concurrently  with 
the  civil  courts;  unless,  indeed,  the  military  jurisdiction  has  already  duly 
attached  (as  by  arrest,  or  service  of  charges  with  a  view  to  trial),  in  which 
case  the  prisoner  may  be  surrendered  or  not  as  the  proper  authority  may 
determine.  A  soldier  under  a  sentence  of  confinemeijt  imposed  by  court- 
include  any  and  all  the  political  members  of  our  governmental  system,  anrl  to  embrace 
an  organized  Territory  equally  with  a  State.  Dig.  J.  A.  Gen.,  53,  par.  9.  See,  also,  par. 
4,  post. 

'  Dig.  J.  A.  Gen.,  51,  p;ir.  8;  2  Opin.  Att.-Gen.,  10. 
»  Ex  parte  McRoherts,  16  Iowa,  608-605. 

*  See  G.  O.  29,  Dcpt.  of  the  Northwest,  1H64,  where  it  is  remarked  that  there  is  an 
especial  obligation  to  surrender  the  soldier  where  the  crime  was  committed  by  him  before 
entering  \\\h  military  service. 

*  2  Opin.  Att.-Gen..  10. 

'  D  cr.  J.  A.  Gen.,  51,  par.  4;  Opin.  of  Att.-Gen.  of  Nov.  26,  1894.  See  Circular  No. 
15,  A.  G.  O.,  of  1894. 


THE  ARTICLES  OF  WAR.  -to 9 

martial  cannot  in  general  properly  be  surrendered  nnder  this  Article.  In 
such  a  case  the  civil  authorities  should  regularly  defer  their  application 
till  the  military  punishment  has  been  executed  or  remitted.' 

Surrenders,  under  the  Article,  can  lawfully  be  made  only  in  accordance 
with  its  terms.  "  An  otticer  or  soldier  accused  as  indicated  by  the  Article, 
though  he  may  be  willing  and  may  desire  to  surrender  himself  to  the  civil 
authorities,  or  to  appear  before  the  civil  court,  should  not  in  general  be 
permitted  to  do  so,  but  should  be  required  to  await  the  formal  application,"  ' 

The  Article  is  directory,  not  jurisdictional.  It  does  not  limit  the  action 
to  be  taken  by  the  military  authorities  to  cases  where  the  application  is  made 
by  the  party;  it  may  be  made  in  his  behalf.  It  does  not  place  a  soldier  who 
has  committed  a  crime  and  been  indicted  therefor  beyond  the  reach  of  the 
civil  power  if  the  person  injured  does  not  apply  for  his  surrender.  In  a  case 
— one  of  murder,  for  exam})le — where  there  can  be  no  personal  ap})lication, 
the  State  properly  takes  the  place  of  the  individual.  And  so  in  all  other 
cases  where  an  indictment  has  been  found  or  a  warrant  of  arrest  has  been 
issued  the  State,  with  which  resides  the  jurisdiction  and  tlic  power  to  prose- 
cute, may  make  the  demand,  and  upon  its  demand  it  is  the  duty  of  the 
commanding  officer  to  surrender  the  party  charged.' 

The  Article  contemplates  only  cases  in  which  an  "officer  or  soldier 
is  accused,"  and  has  no  application  to  civilians  employed  or  resident  at  a 
military  post.*  Nor  does  it  apply  to  the  service  by  a  sheriff  of  a  subpoena  on 
an  officer  or  soldier  to  ajipear  as  a  witness  before  a  civil  court.  In  such  a 
case,  indeed,  the  civil  official  should,  as  a  matter  of  comity,  apply  first  to  the 
post  commander,  whether  or  not  the  post  be  within  the  exclusive  jurisdiction 
of  the  United  States.  It  will  then  be  for  the  commander,  in  comity,  to 
facilitate  the  service  and  to  issue  the  necessary  permit  or  order  to  enable  and 
cause  the  officer  or  soldier  to  attend  the  court.' 

The  several  executive  departments,  and  other  instrumentalities  of  the 
Federal  Crovernment,  being  agencies  of  the  same  sovereignty,  the  Article  is 
not  applicable  to  offenses  against  the  laws  of  the  United  States,  or  to  offenses 
committed  in  places  over  which  the  United  States  has  exclusive  jurisdiction.* 

'  Dig.  J.  A.  Gen..  52,  par.  6.  "Where  a  soldier,  duly  surrendered  under  this  Article 
and  allowed  to  !^<)  on  bail,  was  thereupon  returned  to  duty,  held  that  it  was  within  the 
spirit  of  tiie  Article  lor  the  department  commander  to  instruct  the  comnuiudiug  officer  of 
such  soldier  to  cause  him  to  appear  for  trial  at  the  proper  time.     Ibid. 

»  Ibid.,  53,  par.  7. 

'  Ihid.,  53,  par.  10.  In  view  of  the  obligation  devolved  by  this  Article  upon  officers 
of  the  Arinv,  a  post  commander  would  properly  be  required  to  apprehend  and  hold  for 
surrender  to  the  civil  authorities  a  .soldier  who,  having  been  once  surrendered  under  the 
Article,  had  escaped  and  returned  to  the  post.  Ibid.,  par.  8.  See,  also,  for  a  similar 
case,  G.  O.  7,  Dept.  of  the  South,  1871. 

•*  Ihid.,  54,  par.  11.  So  held  that  it  did  not  apply  to  a  case  of  a  civilian  (Chinese) 
laundryman  employed  and  residing  at  a  military  post  accused  of  a  civil  crime.  While 
it  wovild  be  eqtialfy  desirable  tlial  the  surrender  should  be  made  in  such  a  case,  such 
surrender  would  be  a  matter  of  comity,  not  of  official  duty  under  the  Article.     Ibid. 

'  Ihid.,  .54.  par.  11. 

'  Dig.  J.  A.  Gen.,  52,  par.  5. 


460  MILITARY  LAW. 

The  term  "any  of  the  United  States,"  employed  in  this  Article,  properly 
includes  any  and  all  of  the  political  members  of  our  governmental  system, 
and  embraces  an  organized  Territory  as  well  as  a  State.  As  the  offenses  for 
which  surrender  may  be  demanded  are  made  such  by  the  common  law,  or  by 
statute  in  a  State  or  Territory,  the  Article  is  not  applicable  to  a  case  of  an 
offense  committed  against  the  laws  of  the  United  States,  as,  for  instance, 
the  statutes  prohibiting  the  introduction  of  liquor  into  the  Indian  country. 
Nor  is  it  applicable  to  a  case  of  an  offense  committed  in  a  place  over  and 
within  which  the  jurisdiction  of  the  United  States  is  exclusive.' 

SERVICE    OF    PROCESS    IN    GENERAL. 

The  59th  Article  of  War  provides  a  method  of  procedure  in  effecting  the 
arrest  of  a  military  person  charged  with  an  offense  against  the  law  of  a  State 
or  Territory;  it  contains  no  provisions  respecting  the  general  service  of 
process,  and  is  silent  as  to  the  service  of  process  in  civil  as  distinguished 
from  criminal  cases.  This  subject  is  regulated,  in  some  cases,  by  the  com- 
pact bet\yeen  the  State  and  the  general  government,  as  expressed  in  the  Act 
of  the  Legislature  consenting  to  a  particular  purchase  or  ceding  jurisdiction 
over  a  particular  tract.  If  the  right  to  serve  process  within  the  ceded  terri- 
tory in  civil  and  criminal  cases  arising  within  the  State  but  withoni  such 
ceded  territory  be  reserved  in  the  act  of  cession,  then  process  in  such  cases 
may  be  served,  and  the  service  will  be  regulated  by  the  laws  of  the  State  in 
whose  name  and  by  whose  courts  it  is  issued.  It  has  already  been  seen 
that  where  there  has  been  no  cession  of  jurisdiction  by  the  State  its  officials 
have  the  same  authority  to  serve  the  process  and  mandates  of  its  courts,  and 
its  courts  have  the  same  jurisdiction  over  acts  done  and  crimes  committed 
within  the  military  post  as  elsewhere  in  the  State;  the  mere  fact  of  owner- 
ship or  occupation  of  the  land  by  the  United  States  having  no  effect  to 
except  it  from  the  operation  of  the  State  laws." 

Service  of  Process  in  the  Territories. — Service  of  process  in  the  Terri- 
tories is  analogous  to  similar  procedure  in  the  several  States  within  lands  over 
which  exclusive  jurisdiction  has  not  been  ceded  to  the  United  States. 
Where  a  military  post  or  reservation  is  situated  in  a  Territory  the  Territorial 
courts  are  authorized  to  issue  process  for  the  arrest  of  officers  or  soldiers  of 
the  command  charged  with  crime,  or  to  cite  them  to  appear  before  them  as 
defendants  in  civil  actions,  or  to  attach,  replevy  upon,  or  take  in  execution 


'  Dig.  .T.  A.  Gen..  53,  par.  9.  It  is  further  held,  in  Ex  parte  McRoberts,  16  Iowa, 
603.  that  the  provisions  of  the  Article  apply  only  to  officers  and  soldiers  while  within 
the  immediate  control  and  jurisdiction  of  the  military  authorities,  and  therefore  do  not 
apply  to  a  case  of  a  .soldier  absent  on  fi/rloug?i ;  hut  that  such  a  soldier,  pending  his 
furlough,  may  be  arrested  in  the  same  manner  as  any  civilian. 

5  Fort  Leavenworth  R  It.  Co.  vs.  Lowe,  114  U.  S.,  .525.  527,  533  ;  U.  8.  vs.  Cornell, 
2  Mason,  60;  Com.  ta.  Clary,  8  Mass.,  72;  Mitchell  m.  Tibbitls,  17  Pick.,  298;  Dig.  J. 
A.  Gen.,  245,  par.  3. 


TIIK  ARTICLES  OF    WAR.  4C1 

any  property  belonging  to  tliem  within  tlie  posts,  etc.,  not  specially 
exempted  from  legal  seizure.  This  for  the  reason  that  the  courts  in  which 
is  vestwl  the  judicial  })ower  of  a  Territory  are  not  the  courts  of  a  sovereignty 
distinct  from  the  United  States,  but  are  the  creatures  of  Congress,  being 
established  by  it  directly,  or  indirectly  by  its  authority  through  the  Terri- 
torial legislature,  under  the  provision  of  the  Constitution  '  empowering 
Congress  "to  make  all  needful  rules  and  regulations  respecting  the  terri- 
tory belonging  to  the  United  States."  '' 

Thus  while  oflicials  charged  with  the  service  of  the  process  of  such — as 
indeed  of  any — courts  would,  in  comity,  properly  refrain  from  entering  a 
military  post  for  the  purpose  of  serving  process  therein,  or  at  least  from 
making  the  service,  till  formal  permission  for  the  purpose  had  been  sought 
and  obtained  from  the  commanding  officer,  yet,  on  the  other  hand,  otiicers 
commanding  military  posts  in  the  Territories  should  certainly  interpose  no 
obstacle  to  the  due  service  within  their  commands  of  the  legal  process  of  the 
Territorial  courts.' 

Article  60.  (1)  A7iy  person  i7i  the  military  service  of  the  United  States 
ivho  makes  or  causes  to  he  made  any  claim  against  the  United  States,  or  any 
officer  thereof,  knowing  such  claim  to  le  false  or  fraudulent ;  or 

(2)  Who  presents  or  causes  to  le  presented  to  any  person  in  the  civil  or 
military  service  thereof ,  for  approval  or  payment,  any  claim  against  the 
United   States  or   any  officer   thereof,  knoiving  such  claim  to  he  false  or 

fraudulent ;  or 

(3)  Who  enters  into  any  agreement  or  co7ispiracy  to  defraud  the  United 
States  hy  ohtaining,  or  aiding  others  to  ohtain,  the  allowance  or  payment  of 
afiy  false  or  fraudulent  claim;  or 

(4)  Who,  for  the  j^urpose  of  ohtaining,  or  aiding  others  to  ohtain,  the 
approval,  alloiuance.  or  payment  of  any  claim  against  the  United  States  or 
against  any  officer  thereof,  makes  or  uses,  or  procures  or  advises  the  making 
or  use  of,  any  vjriting  or  ether  paper,  knowi?ig  the  s  i/ne  to  contain  any  false 
or  fraudulent  statement ;  or 

'  Constitution  of  tlie  United  States,  Art.  IV,  Sec.  3,  par.  2. 

'  See  Franklin  vs.  U.  S.,  and  Hc^-nolds  v,<(.  People,  in  1  Colorado  Reports. 

•  "  A  Territory  i.s  not  properly  sovereign.  It  is  an  organization  through  and  by 
means  of  which  Congress  for  a  time  governs  a  particular  portion  of  the  country.  Its 
rights  are  those  whicli  are  set  forth  in  the  organic  Act."  16  Opin.  Att.-Geu.,  115  ;  Dig. 
J.  A   Gen.,  739,  pur.  1,  2.  and  3. 

The  power  of  Congress  over  the  Territories  is  general  and  plenary,  arising  from  the 
right  to  acijuirc  tliein.  It  may  legislate  over  them  within  the  scope  of  its  constitutional 
powers  in  relation  to  the  citizens  of  tlie  United  States,  or  it  may  confer  a  limited  powt-r 
of  legislation  over  local  .'subjects  upon  the  terriU)rial  government  created  by  its  authority, 
but  may  annul  such  legislation  at  its  discretion.  It  may  create  territorial  courts,  and 
may  endow  them  with  appropriate  jurisdiction  ;  but  such  courts  are  in  no  sense  courts  of 
the  United  States  and  form  no  jMirt  of  its  judicial  svstem.  Mormon  Church  vs.  U.  S.,  136 
U.  S.,  1  ;  Scott  vs.  Sandford.  19  How.,  393  ;  Ferris  nt.  Higley.  20  Wall..  375  :  Horn- 
buckle  >-s.  Toombs.  18  Wall.,  648  ;  Davis  vs.  Hillsland,  idem:  Scott  vs.  Jones,  5  How., 
343  :  Clinton  ra  Enirlebrccht,  13  Wall..  434:  Fnnklin  vs.  U.  S.,  1  Col.;  Reynolds  m. 
Peope,  ibiil.:  G.  O.  30,  H   Q.  A..  1878  ;  7  Opin.  Att.-Gen..  564. 


462  MILITARY  LAW. 

(5)  Who,  for  the  purpose  of  obtaining,  or  aidinr/  others  (a  obtain,  the 
approval,  allowance,  or  payment  of  any  rJaim  against  the  United  States  or 
any  officer  thereof,  makes,  or  2)rocures  or  advises  the  making  of,  any  oath  to 
any  fact  or  to  any  meriting  or  other  paper,  knowing  such  oath  to  be  false  ;  or 

(6)  ]Vho,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain,  the 
approval,  allowance,  or  payment  of  any  claim  against  the  United  States  or 
any  officer  thereof  ,  forges  or  counterfeits,  or  procures  or  advises  the  forging 
or  counterfeiting  of,  any  signature  upon  any  nn-iting  or  other  paper,  or  uses, 
or  procures  or  advises  the  use  of,  any  such  signature,  knowing  the  same  to  be 
forged  or  counterfeited  ;  or 

(I)  Who,  having  charge,  possession,  custody,  or  conti'ol  of  any  money  or 
other  j^roperty  of  the  United  States,  furnished  or  intended  for  the  military 
service  thereof,  knoivingly  delivers,  or  causes  to  be  delivered,  to  any  person 
having  authority  to  receive  the  same,  any  amount  thereof  less  than  that  for 
"iohich  he  receives  a  certificate  or  receipt ;  or 

(8)  Who,  being  authorized  to  make  or  deliver  any  paper  certifying  the 
receipt  of  any  ptropcrty  of  the  United  States,  furnished  or  intended  for  the 
military  service  thereof,  makes,  or  delivers  to  any  person,  such  writing, 
without  having  full  knowledge  of  the  truth  of  the  statements  therein  con- 
tained, and  ivith  iyitent  to  defraud  the  United  States  ;  or 

(9)  Who  steals,  embezzles,  knoivingly  and  willfully  misapprojjriates, 
applies  to  his  oion  use  or  benefit,  or  wrongfully  or  knowingly  sells  or  dis- 
poses of  any  ordnance,  arms,  equipments,  ammunition,  clothing,  subsiste7ice 
stores,  money,  or  other  property  of  the  United  States,  furnished  or  intended 
for  the  military  service  thereof ;  or 

(10)  Who  knowingly  purchases,  or  receives  in  pledge  for  any  obligation 
or  indebtedness,  from  any  soldier,  officer,  or  other  person  who  is  apart  of  or 
emjdoyed  in  said  forces  or  service,  any  ordnance,  arms,  equipmetits,  atmnu- 
nition,  clothing,  subsistence  stores,  or  other  property  of  the  U^iited  States, 
such  soldier,  officer,  or  other  person  not  haviiig  lawftd  right  to  sell  or  pledge 
the  same, 

(II)  Shall,  on  conviction  thereof,  be  punished  by  fine  or  imprisonment, 
or  by  such  other  punishment  as  a  court-martial  may  adjudge,  or  by  any  or 
all  of  said  penalties.  And  if  any  person,  being  guilty  of  any  of  the  offenses 
aforesaid,  ivhile  in  the  military  service  of  the  United  States,  receives  his  dis- 
charge, or  is  dismissed  from  the  service,  he  shall  continue  to  he  liable  to  be 
arrested  and  held  for  trial  and  sentence  by  a  court-martial,  in  the  same 
manner  and  to  the  same  extent  as  if  he  had  -not  received  such  discharge  nor 
been  dismissed.  Section  5,  Act  of  March  2,  1901.  (31  Statutes  at  Large, 
951.) 

This  Article,  which  was  enacted  during  the  continuance  of  the  "War  of 
the  Rebellion,  creates  a  number  of  offenses  against  the  United  States,  each 
of  which  involves  actual  fraud  and  an  intent  to  defraud  the  public.     The 


rilK  ARTICLES  OF   WAR. 


463 


several  offenses  named  in  tlie  enactment  are  statutory  in  character,  and  each 
Bliould  be  charged  and  proved  in  accordance  with  the  definitions  prescribed  in 
the  particular  clause  to  whicli  the  offense  relates.  A  statutory  intent  is  alh-ged 
in  several  chaises,  which  must  also  be  set  forth  in  tlie  charges,  and  established 
in  evidence,  in  order  to  warrant  a  conviction  under  the  terms  of  the  Article. 
Fraudulent  Claims.— Clauses  one  to  six,  inclusive,  relate  to  fraudulent 
claims  and  denuuuls  against  the  United  States  and  nuike  each  of  the  follow- 
ing acts  an  offense  against  the  United  States; 

(1)  "  Any  person  in  the  military  service  of  the  United  States  who  makes 
or  causes  to  be  made  any  claim  against  the  United  States,  or  any  officer 
thereof,  knowing  such  claim  to  be  false  or  fraudulent;  or 

(2)  "  Who  presents  or  causes  to  be  presented  to  any  person  in  the  civil 
or  military  service  thereof,  for  approval  or  payment,  any  claim  against  the 
United  States  or  any  officer  thereof,  knowing  such  claim  to  be  false  or 
fraudulent;  or 

(o)  "  AVho  enters  into  any  agreement  or  conspiracy  to  defraud  the 
United  States  by  obtaining,  or  aiding  others  to  obtain,  the  allowance  or  pay- 
ment of  any  false  or  fraudulent  claim;  or 

(4)  "  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain,  the 
approval,  allowance,  or  payment  of  any  claim  against  the  United  States  or 
against  any  officer  thereof,  makes  or  uses,  or  procures  or  advises  the  making 
or  use  of,  any  writing  or  other  paper,  knowing  the  same  to  contain  any  false 
or  fraudulent  statement;  or 

(5)  "  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain,  the 
approval,  allowance,  or  payment  of  any  claim  against  the  United  States  or 
any  officer  thereof,  makes,  or  procures  or  advises  the  making  of,  any  oath  to 
any  fact  or  to  any  writing  or  other  paper,  knowing  such  oath  to  be  false ;  or 

(6)  "  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain,  the 
approval,  allowance,  or  payment  of  any  claim  against  the  United  States  or 
any  officer  thereof,  forges  or  counterfeits,  or  procures  or  advises  the  forging 
or  counterfeiting  of,  any  signature  upon  any  writing  or  other  paper,  or  uses 
or  procures  or  advises  the  use  of,  any  such  signature,  knowing  the  same  to 
be  forged  or  counterfeited." 

The  claims  referred  to  in  the  statute  are  "  false  and  fraudulent,"  that  is, 
they  are  wrongful  demands  for  money  alleged  to  be  due  for  supplies 
furnished  or  for  services  rendered,'  and  are  known  to  be  such  by  the 
accused,  at  the  time  of  their  presentment. 

'  The  ofTense  known  as  the  duplicating  of  pay-rolls,  where  it  involves,  as  it  generally 
does,  a  prosentini;  or  a  oausiii.!?  to  be  presented  of  a  false  or  fraiidvilent  claim  ag:iii)st  the 
United  States,  is  properly  charceable  under  this  Article      Dig.  J.  A.  Gen.,  55,  par.  1. 

Where  an  officer  who  had  been  sentenced  to  forfeit  all  pay  due,  but  whose  sentence 
had  not  yet  been  approved  or  published,  presented  pay  accounts  to  the  paymaster  for 
liis  pay,  and  received  the  amount  of  the  same,  held  that  lie  was  not  triable  for  the 
offense  of  presentintr  a  fraudulent  claim  under  this  Article.     Ibid.,  par.  2. 

The  presenting  of  false  and  fraudulent  claims  for  horses  lost  in  battle,  for  recruiting 


464:  MILITARY  LAW. 

Short  Payments;  Receipts  in  Blank. — Clauses  seven  and  eight  also 
make  it  a  criminal  otiense  on  tiie  part  of  any  person 

(7)  "  Wlio,  having  cliarge,  possession,  custody,  or  control  of  any  money 
or  other  property  of  the  United  States,  furnished  or  intended  for  the  mili- 
tary service  thereof,  knowingly  delivers,  or  causes  to  be  delivered,  to  any 
person  having  authority  to  receive  the  same,  any  amount  thereof  less  than 
that  for  whicii  he  receives  a  certificate  or  receipt;  or 

(8)  "  Who,  being  authorized  to  make  or  deliver  any  paper  certifying  the 
receipt  of  any  property  of  the  United  States,  furnished  or  intended  for  the 
military  service  thereof,  makes,  or  delivers  to  any  person,  such  writing, 
■without  having  full  knowledge  of  the  truth  of  the  statements  therein  con- 
tained, and  with  intent  to  defraud  the  United  States." 

The  offense  described  in  clause  seven  is  that  of  "  short  payments,"  that 
is,  payments  of  money  less  in  amount  than  are  called  for  in  the  receipts 
given  therefor  by  creditors  of  the  United  States.  The  principle  applies 
equally  to  property  transactions,  and  impliedly  prohibits  the  giving  of  blank 
receipts  by  officers  of  the  army.' 

Clause  eight  makes  a  certain  form  of  negligence  in  the  verification  of 
articles,  or  quantities,  of  property  or  stores  received  by  an  officer,  in  behalf 
of  the  United  States,  in  pursuance  of  a  contract  or  agreement;  such  negli- 
gence consisting  in  the  making  or  delivery  of  a  paper  certifying  the  receipt 
of  property  without  having  full  knowledge  of  the  truth  of  the  statements 
contained  in  such  paper,  aiul  with  intent  to  defraud  the  United  States.'' 

Stealing,  Larceny,  Embezzlement,  etc. — The  ninth  clause  makes  it  an 
offense  on  the  part  of  any  person  "  who  steals,  embezzles,  knowingly  and 
willfully  misappropriates,  applies  to  his  own  use  or  benefit,  or  wrongfully  or 
knowingly  sells  or  disposes  of  any  ordnance,  arms,  equipments,  ammunition, 
clothing,  subsistence  stores,  money,  or  other  property  of  the  United  States, 
furnished  or  intended  for  the  military  service  thereof." 

The  offense  of  stealing,  indicated  in  the  9th  paragraph  of  this  Article, 

expenses,  and  for  rewards  for  the  arrest  of  deserters,  held  offenses  within  paragraphs  1, 
2,  and  4  of  this  Article.     Dig.  J.  A.  Gen.,  par.  J?. 

Wiiere  a  soldier,  in  order  to  procure  his  discharge  from  the  service  and  the  payment 
thereupon  of  a  considerable  amount  not  in  fact  due  him,  forged  the  name  of  his  com- 
manding officer  on  a  discliarge-paper  and  a  "final  statement  "  paper,  and_pre.scnted  the 
same  to  a  paymaster,  field  that  he  was  chargeable  with  offenses  defined  in  the  2d,  4th, 
and  6tli  paragraphs  of  this  Article.     Ibid.,  par.  4. 

'  AVHiere  a  disbursing  otlicer,  having  caused  a  creditor  of  the  United  States  to  sign 
a  receipt  in  blaidc,  paid  him  a  less  sum  than  was  due  him,  and  afterwards  inserted  the 
true  amount  due  in  the  receipt,  .so  as  to  ol)tain  credit  with  the  United  States  for  the 
greater  sum,  ?teld  that  he  was  chargeable  with  the  offense  defined  in  the  7th  paragraph 
of  this  Article.     Ihid.,  .16,  par.  5. 

«  Where  an  officer,  by  collusion  with  a  contractor  who  had  contracted  for  the  delivery 
of  military  supplies,  received  for  a  pecuniary  consideration  from  the  latter  a  less  amount 
of  supplies  tlian  the  United  States  was  entitled  to  under  the  contract,  while  at  the  same 
time  giving  him  a  vouchor  certifying  on  its  face  the  delivery  of  the  whole  amount, 
Iield  that  such  officer  was  cliargeable  with  an  offense  of  the  class  defined  ia  the  8th 
paragraph  of  this  Article.     IlmL,  pnr  6. 


THE  ART  It' LEU   OE    WAli.  405 

consists  in  a  larceny  of  "property  of  the  United  States  furnished  or  intended 
for  the  military  service."  Except  in  time  of  war,'  hirceny  of  other  projjerty 
can  be  charged  as  a  military  offense  only  when  cognizable  under  Article  G2, 
us  ])rejudiciiig  good  order  and  military  discipline.' 

The  olfense  of  embezzlement  has  already  been  discussed.'  In  order  to 
determine  whether  certain  acts  or  conduct  may  properly  be  charged  as  con- 
stituting embezzlement  of  public  money  under  the  ninth  paragraph  of  this 
Article,  the  Sections  of  the  Revised  Statutes*  relating  to  embezzlements  may 
l)roperly  be  recurred  to.  Acts  here  sjjecified  as  constituting  embezzlements 
ill  law  may,  when  committed  by  officers  of  the  army,  be  charged  as  embez- 
zlements under  this  xVrticle,  and  the  rules  of  evidence  established  by  these 
Sections  may  also  be  applied,  where  apposite,  to  military  cases.'  But  as  to 
the  poialties  prescribed  in  the  same,  these,  though  useful  as  going  to  indi- 
cate a  reasonable  measure  of  punishment  when  iinprisoiiinent  or  tine  is  ])ro- 
posed  to  be  adjudged,  are  of  course  in  no  respect  obligatory  upon  military 
tribunals,  and  any  ai)proved  military  penalty  or  penalties,  such  as  dismissal, 
suspension,  etc.,  may  be  imposed  by  courts-martial  upon  conviction  of 
embezzlement,  either  alone  or  in  connection  with  imprisonment  or  line. 
So  a  term  of  continement,  or  a  fine  (or  forfeiture  of  pay),  in  excess  of  the 
l)enalties  authorized  for  civil  offenders  may  legally  be  adjudged  by  such 
courts.' 

In  a  case  of  embezzlement  of  public  funds  '  or  property,  charged  nndei 
this  Article,  it  is  not  necessary  to  allege  in  terms,  or  to  prove,  an  intent  tt 
defraud  the  United  States.  It  is  the  act  of  legal  embezzlement  which  is 
made  the  offense,  irrespective  of  the  purpose  or  motive  of  such  act.' 

'  See  the  SSth  Article  of  War,  9upra.  See,  also,  uuder  the  58lh  Article,  the  lilla 
Larcuny. 

»  Dig.  ,J.  A.  Gen.,  59,  pur.  16. 

'  See  Article  :")8,  supra,  title  FJmhezzlemeiit. 

•»  See  Title  LXX.  R»!v.  Slat.     See,  also,  Dii,'.  .J.  A.  Geii.  60,  pans.  19-23. 

'  See  cnse.s  in  "liieli  emhez/.ieineiits  of  tliis  class  were  charged  against  officers  of  the 
Armv.  in  G  O.  1,  War  DejU.,  18(11  ;  G.  C.  M.  O.  4:5,  86,  Ildqrs.  of  Ainiy.  1868;  do.  21. 
War'Dept..  1871  ;  do.  27,  34,  id.,  1872  ;  do.  81,  id.,  1874  ;  do.  52,  Hdqrs.  of  Army.  1877. 

«  Dig   J.  A.  Gen.,  56.  par.  8. 

'  "  All  money  lawfidly  in  the  hands  of  a  public  othcer,  and  for  wiiieli  he  is  account- 
able, is  money  of  the  United  Stales."     United  States  rs    W.-itkins.  :!  ("ranch  C.  C,  441. 

*  Dig.  .T.  A.  Gen.,  56,  jiar.  7.  The  witinirawing.  hy  a  disbursing  otlicer  of  the  Army, 
from  an  authorized  depository,  of  public  funds  for  a  purpose  not  prescribed  or  author- 
ized by  law— as  for  personal  u.se.  or  to  pay  claims  not  due  from  tlie  United  Stales  or 
payable  by  such  officer — being  a  form  of  embezzlement  detined  by  Sec.  5488.  Rev.  Sts., 
//^W  properly  charged  as  embezzlement  uncier  tlie  present  Article  ;  and  couviclious  of 
officers  upon  sucii  a  charge  held  iiwXXvtr'w.vd  .and  legal.      Ihid.,  57,  ]iar.  9. 

Rut  held  that  to  constitute  .such  eml)ezzl<-ment  it  is  not  neces.sary  that  there  should 
have  been  a  personal  conversioTi  of  the  funds  or  an  intent  to  defiaud.  Tiic  object  of 
the  law  is  to  provide  a  safeguard  against  the  misuse  and  diverting  from  tlieir  appointed 
purpose  of  public  moneys,  and  the  intent  of  liie  offender,  wiieilier  fniuduletu  or  not, 
enters  in  no  respect  into  the  statutory  crime.  If  the  witiidrawal  or  application  of  tlie 
funds  is  simply  one  not  prescribed  or  authorized  by  law,  the  offense  is  complete.  An 
absence,  howe%'ei-.  of  criminal  niolive  in  thr  illegal  act  may  be  shown  in  mitigation  of 
sentence  in  a  military  case.     lbi<l. 

So  held  that  it  constituted  no  defenxe  to  a  charge  of  an  embezzlement  of  this  class 


4:6 Q  MILITARY  LAW. 

Misappropriation ;  Misapplication.  —  Misappropriation  is  a  form  of 
wrongful  conversion  of  tlie  ownership  of  tlie  money  or  property  of  the 
United  States;  as  here  used  it  is  nearly  synonymous  "with  embezzlement. 
Misapplication  is  a  diversion  of  public  money  or  property  from  the  particu- 
lar use  autliorized  in  the  act  of  appropriation  to  another  use  not  so  autho- 
rized; the  title  and  ownership  continuing  in  the  United  States.  "  The 
misappropriation  specified  in  the  Article  need  not  be  an  appropriation  for  the 
personal  profit  of  the  accused.  The  words  '  to  his  own  use  or  benefit ' 
qualify  only  the  term  '  applies.'  "  ' 

In  charging  a  stealing,  embezzlement,  misappropriation,  etc.,  under 
this  Article,  it  is  not  necessary  to  allege  that  the  funds  or  property  were 
"  furnished  or  intended  for  the  military  service":  it  is  sufficient  if  this  fact 
appears  from  the  evidence,  and  in  most  cases  it  wmII  be  inferable  from  the 
very  nature  of  the  property  itself — as  where,  for  example,  the  same  consists 


(though  it  uvght  be  shown  iu  mitigation  of  punishment)  that  tlie  officer  had  restored  to 
the  public  depository  the  funds  iUegally  withdrawn  by  him  before  a  formal  demand 
was  made  for  the  same.     Dig.  J.  A.  Gen.,  57,  par.  9. 

It  is  a  defense  to  a  cliarge  (under  this  Article)  of  the  embezzlement  defined  in  Sec- 
tion 5490,  Revised  Statutes,  as  consisting  in  a  failure  to  safely  keep  public  moneys  by 
an  officer  charged  witb  the  safe-keeping  of  the  same,  tliat  the  fuiuis  alleged  to  have  been 
embezzled  were,  without  fault  on  the  part  of  the  accused,  lost  in  transportation,  or 
fraudulently  or  feloniously  abstracted.     Ibid.,  par.  10. 

Section  5495,  Revised  Statutes,  provides  that  the  refusal  of  any  person  charged  with 
the  disbursement  of  public  moneys  promptly  to  transfer  or  disburse  the  funds  in  his 
hands,  "  upon  the  legal  requirement  of  an  authorized  officer,  shall  be  deemed,  upon  the 
trial  of  any  indictment  against  such  person  for  embezzlement,  as  prima  facie  evidence 
of  such  embezzlement."  Applying  this  rule  to  a  military  case,  it  is  clear  that,  iu  the 
event  of  such  a  refusal  by  a  disbursing  officer  of  the  Army,  the  burden  of  proof  would 
be  upon  him  to  show  that  his  proceeding  was  justified,  and  that  it  would  not  be  for  the 
prosecution  to  show  what  had  become  of  the  funds.  So  where  an  acting  commissary 
of  subsistence,  on  being  relieved,  failed  to  turn  over  the  public  moneys  in  his  hands  to 
his  successor,  or  to  his  post  commander  when  ordered  to  do  so,  or  to  produce  such 
moneys,  exhibit  vouchers  for  the  same,  or  otherwise  account  for  their  use,  when  so 
required  by  his  department  commander,  held  that  he  was  properly  charged  with  and 
convicted  of  embezzlement  under  this  Article.     Ibid.,  par.  11. 

In  view  of  the  injunction  and  definition  of  Sections  3623  and  5491,  Revised  Statutes, 
an  officer  who,  in  his  official  capacity,  receives  public  money  (not  pay  or  an  allowance) 
which  he  fails  duly  to  account  for  to  the  United  States  is  guilty  of  embezzlement.  The 
statute  makes  no  distinction  as  to  the  sources  from  which  the  money  is  derived  or  the 
circiunstances  of  its  receipt.  Nor  is  it  material  whether  or  not  the  officer  actually  con- 
verted it  to  his  own  use  or  what  was  the  motive  of  his  disposition  of  it.  So  //eld  that  an 
officer  who,  having  claimed  and  exacted  certain  moneys  from  Government  contractors 
for  alleged  liabilities  on  their  part,  failed  to  pay  the  same  into  the  treasury,  or  to  duly 
account  therefor,  was  guilty  of  embezzlement  under  the  ninth  paragraph  of  this  Article. 
Ibid.,  60.  par.  19. 

Where  an  officer  allowed  to  an  enlisted  man  and  paid  to  him,  out  of  ceitain  public 
funds  consisting  of  the  proceeds  of  a  ituhlic  sale  of  condenmed  (piarlermaster  stores,  an 
amount  of  10  per  cent,  on  the  total  of  such  proceeds,  as  a  compensation  for  the  services 
of  such  man  as  auctioneer  at  the  sale,  held  that  such  payment  was  illegal  and  unauthor- 
ized and  constituted  an  embezzlement  of  public  money  cliargeable  vmder  the  60th  or 
the  62d  Article.     Ibid.,  par.  20 

Repeated  false  statements  of  the  accused  relative  to  the  public  moneys  for  which  he 
was  accoimtable  are  competent  evidence  going  to  sustain  a  charge  of  embezzlement 
under  this  Article.     Ihid  ,  61,  par.  22. 

'Dig.  J.  A.  Gen.,  58,  par.  13. 


THE  ARTICLES  OF    WAR.  467 

of  "quartermaster's  stores,"  "subsistence  stores,"  "  ordnauce  stores," 
etc' 

The  application  or  operation  of  this  Article  is  in  no  manner  allected 
by  the  enactment  of  March  3,  1.S75,  constituting  embezzlement  of  public 
property  a  felony  and  making  it  triable  by  a  United  States  court,  such  Act 
being  a  purely  civil  statute.' 

Purchasing  Articles  of  Equipment,  etc. — Clause  ten  make^  it  a  criminal 
otiense  on  the  part  of  any  person  "  who  knowingly  purchases,  or  receives  in 
pledge  for  any  obligation  or  indebtedness,  from  any  soldier,  oHicer,  or  other 
person  who  is  a  part  of  or  employed  in  said  forces  or  service,  any  ordnance, 
arms,  equipments,  ammunition,  clothing,  subsistence  stores,  or  other  prop- 
erty of  the  United  States,  such  soldier,  officer,  or  other  person  not  having 
lawful  right  to  sell  or  pledge  the  same."  ' 

This  clause  makes  it  unlawful  to  purchase,  sell,  or  receive  in  pledge  the 
articles  of  CJovernment  property  therein  named,  and  deprives  all  such  trans- 
actions of  legal  validity  which  have  not  been  effected  in  strict  conformity  to 
law. 

The  penalty  imposable  upon  conviction  of  any  of  the  offenses  named 
in  the  article  is  contained  in  clause  eleven  which  provides  that  such 
offenders  shall,   on  conviction  thereof,    be  punislied  by  fine  or  imprison- 

'  Dig.  J.  A.  Geu.,  58,  pur.  U. 

«  Ibid.,  61,  psir.  2:3. 

Where  !iu  officer  of  the  Quarlermasler  Department  used  teams,  tools,  and  other  public 
propel ty,  in  bis  po.ssessiou  as  such  officer,  in  erecting  buildings,  etc.,  for  the  benelit  of 
an  association,  compo.sed  mainly  of  civilians,  of  which  ho  was  a  ineniber,  held  that  he  was 
properly  chargeable  with  a  misappropriation  of  property  of  ti)e  United  States.  And 
simihirly  held  oi  a  loaning  by  such  an  officer  of  public  property  (corn)  to  a  contractor 
for  the  i)urpose  of  enabling  him  to  lill  a  contract  made  with  the  United  States  through 
another  officer.  The  fact  that  a  practice  exi.sts  in  a  post  or  other  command  of  m;iking  a 
use  (not  authorized  by  regulation  or  order)  of  govenuneiU  [iroperty  for  private  pur- 
poses, or  of  loaning  it  in  the  ])rospect  of  a  iM-ompl  return,  can  constitute  no  defense  to 
iA  charse  for  such  act  as  an  offense  nuder  this  Article.  Such  practice,  however,  if  sanc- 
doned.  though  improperly,  by  superior  authority,  may  be  shown  in  evidence  in  mitiga- 
/ion  of  .sentence.     Ibid..  59,  par.   15. 

Where  a  q»iarterma3ter  u.sed  temporarily  with  his  private  carriage  a  pair  of  govern- 
ment h  )rses  in  his  charge,  held  that  he  was  not  properly  chargeable  with  embezzlement, 
but  with  the  offense,  imder  this  Article,  of  '•knowingly  api>iying  to  his  own  use  and 
benefit  property  of  the  United  States  furni.shed  for  the  military  service."  Ibid.,  o8, 
par.  12. 

'  ffeld  that  under  the  concluding  provi.siou  of  this  Article*  a  .«oldier  might  be  brought 
to  trial  for  an  offen'^e  of  the  class  specified  therein  while  held  iiniirisoiied.  after  dishon"r- 
able  discharge  under  a  senleiu-e  imposed  for  another  otTense.  proviiled.  of  cour.se,  the 
two  yeans'  limitation  of  Article  Iflo  had  not  expired.     Dig.  .T.  .V.  Gen.,  ")!),  par.  17. 

In  view  of  the  words  "  in  the  same  manner."  employed  in  the  last  paragraph  of  this 
Article,  considered  in  connection  with  the  77th  Article  and  Section  Ifi.'iS,  Revised 
Statutes,  held  that  a  volunteer  or  miliiia  officer  or  soldier  could  be  tried,  after  his  dis- 
charge from  the  service  for  a  breach  of  this  Article  committed  while  in  the  service,  only 
by  a  court  composed  in  the  one  case  of  other  than  regular  officers  and  in  the  other  of  mili- 
tia officers.     Ibid.,  60,  par.  18. 

*  Whether  this  provision,  in  siihjVctine  rifflcers  and  soldiers  discharged,  mustered  out.  etc.,  and 
become  riviliixna.  to  trial  liy  court  martial  in  tiie  same  maimer  as  if  thev  were  a  part  of  the  .\riny.  is 
conslitiitional.  is  a  question  which  is  h^lieveil  not  to  liav"  hfeii  judicially  passed  upon.  l>ri>hat)ly  orig- 
inally inserted  in  tne  .\ct  of  March  •-'.  18(i-l.  (from  which  the  Article  is  repfated.t  as  in  the  nature  of  a 
trar  mffi.s-Krf.  it  was  in  fact  relied  upon  as  eivintr  juri-^dic-tion  in  but  a  small  nnnit)>'r  of  cases  even 
during  the  war,  and  since  tliat  period  no  case  is  kii^wn  in  which  the  exceptional  jurisdiction  conferred 
has  been  taken  advautas^e  of. 


46 S  MILITARY  LAW. 

ment,  or  by  such  other  puuishment  as  a  court-martial  may  adjudge.  And 
if  any  person,  being  guilty  of  any  of  tlie  olfenses  aforesaid  while  in  the 
military  service  of  the  United  States,  receives  his  discharge  or  is  dismissed 
from  the  service,  he  shall  continue  to  be  liable  to  be  arrested  and  held  for 
trial  and  sentence  by  a  court-martial,  in  the  same  manner  and  to  the  same 
extent  as  if  he  had  not  received  such  discharge  nor  been  dismissed." 

This  clause  confers  jurisdiction  upon  a  general  court-martial  to  try  an 
offender,  for  an  olfense  in  violation  of  this  Article,  after  his  discharge  or 
muster-out,  provided  the  statute  of  limitations  has  not  run  at  the  date  of 
the  order  for  such  trial. 

Aeticle  61.  Any  officer  who  is  convicted  of  conduct  unheconmigan  officer 
and  a  yentlemivi  shall  be  dismissed  from  the  service. 

This  Article  does  not  appear  in  any  of  the  codes  issued  under  the  royal 
prerogative  prior  to  the  Mutiny  Act.  In  its  original  form  the  Article  con- 
tained the  reqairement  that  "  in  every  charge  against  an  officer  for 
scandalous  or  unbecoming  behavior  the  fact  or  facts  whereon  the  same  is 
grounded  shall  be  clearly  specified."  Although  the  facts  continued  to  be 
set  forth  in  the  specifications,  the  provision  requiring  that  course  had  dis- 
appeared from  the  Article  prior  to  the  middle  of  the  last  century.  The 
requirement  in  substantially  its  present  form  appears  as  Article  23,  Section 
15,  of  the  British  Code  of  1774,  as  Article  21,  Section  14,  of  the  American 
Articles  of  1770,  and  as  Xo.  83  of  the  Articles  of  1806.  The  words 
"  scandalous  and  infamous,"  which  had  appeared  in  the  earlier  Articles  and 
which,  having  been  confused  with  the  word  "  infamous  "  as  used  at  the 
common  law,  had  given  rise  to  some  confiict  in  interpretation,  were  omitted 
from  the  revision  of  180G. 

Nature  of  the  Offense.— This  Article,  like  the  02d,  is  in  form  an  appa- 
rent exception  to  the  rule  that  offenses  against  the  United  States  must  be 
exactly  described  in  the  enactment  which  creates  them.  The  effect  of  the 
Articfe  is  to  establish  a  standard  of  conduct  in  respect  to  commissioned 
officers  of  the  Army,  and  to  give  to  material  departures  from  such  standard 
the  character  of  serious  military  offenses.  The  particular  acts  oi'  classes  of 
acts  which  constitute  such  departures  from  the  standard  established  in  the 
Article  are  determined  in  part  by  custom  of  service  and  in  part,  as  will 
presently  be  seen,  by  an  application  of  the  terms  of  the  Article  to  the  par- 
ticular acts  or  omissions  which  are  set  forth  in  the  charges  and  specifications; 
if  the  conduct  charged  be  found,  upon  inquiry,  to  conform  to  the  conditions 
set  forth  in  the  statute,  that  is,  to  be  "  conduct  unbecoming  an  officer  and 
trentleman ,"  the  offense  described  in  the  Article  has  been  committed  and 
the  mandatory  sentence  of  dismissal  must  be  imposed.' 

1  In  Dynes  vs.  Hoover,  80  How..  82,  it  was  held  that  the  jiirisdietion  of  courts-mar- 
tial uixler  the  Articles  for  the  L^overnment  of  the  Navy  established  by  Conjrress  was 
not  limited  to  tlie  frimes  defined  or  specified  in  tliose  Articles,  but  extended  to  anyoflfenst 
which,  by  fair  deduction  from  the  definition,  Congress  meant  to  subject  to  punishment, 


TUK  ARTICLES   OF   ^VAR.  409 

Scope  of  the  Article. ^ — In  its  original  form  the  Article  required  the 
conduct  to  Ije  "  scamluluus  und  infiinious,"  ])ut  these  words  "were  omitted 
from  the  revision  of  the  Articles  of  Wiir  in  I8(^ij,  and  in  an  earlv  case  it 
was  iield  by  tiie  Secretary  of  War  that  tiiey  had  been  dropped  intentionallv, 
and  in  a  manner  amounting  to  a  declaration  by  Congress  tiuit  it  should  no 
longer  be  necessary  in  urder  to  Ijring  an  otlicer  within  the  scope  of  tlie 
Article  that  the  act  charged  should  be  "  scaiulalous  and  infaniuiis,"'  pro- 
vided it  were  "  unbecoming  an  otriccr  and  gentlenuTU."  '  What  constitutes 
conduct  unbecoming  an  otticer  and  gentleman  will  tlierefore  be  determined 
by  custom  of  service,  aiul  such  conduct  has  been  declared  to  be  "something 
more  than  indecorum  "  and  "such  as  to  disgrace  the  olfender — to  make  him 
an  unlit  associate  for  ollicers  and  gentlemen,  and  to  render  his  ex})ulsiou 
from  the  society  of  such  necessary  to  the  preservation  of  the  respect  due  to 
them  as  a  class."  '     Nor  is  it  essential  that  the  act  should  compromise  the 

beiug  one  of  a  minor  degree,  of  kindred  character,  which  has  already  been  recognized  to 
be  such  by  llie  practice  of  courts-martial  in  the  army  and  navy  services  of  Millions,  and 
by  those  functionaries  in  dillerent  nations  to  whom  has  been  conlided  a  revising  power 
over  the  sentences  of  courts-maitial;  or  which,  tiiough  not  included,  in  terms  orby  con- 
struction, witliin  a  compreliensive  enactment,  sucli  as  tlie  :!2(1  Article  for  the  government 
of  the  Navy,  vvliicli  means  that  courts-martial  have  jurisdiction  of  sucii  crimes  as  are  not 
specitjed,  but  winch  have  been  recognized  to  be  crimes  and  ollenses  by  tlie  usages  of  the 
navy  of  all  nations,  and  that  they  shall  be  punished  according  to  the  laws  and  customs 
of  the  sea.  Dynes  vs.  Hoover,  30  How.,  83  ;  Smith  m.  Whitney,  116  U.  S.,  167,  183, 
185. 

'Dig.  J.  A.  Gen.,  61,  par.  1;  Ives,  p.  365.  To  constitute  an  offense  under  this 
Article  the  conduct  need  not  be  "scandalous  and  infamou.s."  These  words,  contained 
in  the  original  Article  of  1775,  were  dropped  in  the  form  adopted  in  1806.  An  act,  how- 
ever, which  is  only  slightly  discreditable  is  not  in  practice  made  the  subject  of  a  charge 
under  this  Article.  The  Article,  in  making  the  punishment  of  dismissal  imperative  in 
all  cases,  evidently  contemplates  that  the  conduct,  while  iintilting  the  partj'  for  the 
society  of  men  of  a  scrupulous  sense  of  decency  and  honor,  shall  exhibit  him  us  un- 
worthy to  hold  a  commission  in  tlie  army.     Dig.  J.  A.  Gen.,  61,  par.  1. 

»G'.  O.  97,  Army  of  the  Potonuic.  March  8,^1862;  G.  O.  Ill,  ibid.,  March  25,  1862. 
See.  also.  General  Orders,  41,  A.  G.  O.,  of  1879,  in  which  General  Sherman  remarks  that 
•'  the  charge  of  violating  the  61st  Article  of  War  should  only  be  made  when  the  conduct 
of  the  accused  is  such  as  to  unlit  him  to  be  an  associate  of  officers  and  gentlemen." 

Knowingly  making  to  a  superior  a  false  official  report  held  chargeable  uiuier  this 
Article.  So  of  a  deliberately  false  official  certilicate  as  to  the  truth  or  correctness  of  an 
official  voucher,  roll,  return,  etc.  So  of  any  deliberately  false  official  statement,  written 
or  verbal,  of  a  material  character.  So  wiiere  an  officer  caused  the  sergeant  of  thesruard 
to  enter  in  the  guard-book  a  false  official  report  that  he  (the  officer)  had  duly  visited  the 
guard  at  certain  hours  as  officer  of  the  day  (when  he  had  in  fact  been  guilty  of  a 
neglect  of  duty  in  this  particidar).  and  thereupon  himself  signed  such  report  and  sub- 
milted  it  to  his  post  commander,  held  that  his  conduct  was  chargeable  as  an  olTense 
under  this  Article.     Dig.  J.  A.  Gen  ,  63,  par.  3. 

The  following  acts  committed  in  a  particular  case  held  to  be  offenses  within  this 
Article:  preferring  false  accu.sations  against  an  officer;  attempting  to  induce  an  officer 
to  join  in  a  fraud  upon  the  United  Stales;  attempt  at  subornation  of  perjury.  Ibid., 
par.  3. 

The  use  of  abusive  language  toward  a  commanding  officer  may  constitute  an  offense 
ander  this  Article.  But,  both  as  a  matter  of  correct  pleading.and  because  the  20th 
Article  autliorizesa  punishment  le.'is  than  dismissal,  the  lauguaijce  should  be  so  particu- 
Jarized  as  to  show  that  it  constituted  an  offense  more  grave  than  llie  mere  disrespect 
which  is  the  subject  of  the  latter  Article.  A  specilication  not  thus  setting  forth  and 
characterizing  the  epithets  or  words  employed  will  be  subject  to  a  motion  to  make  deti- 
tii^e  or  strike  out.     Ibid.,  65,  par.  21. 

Held  that  a  surgeon  who  appropriated  to  his  own  personal  use,  and   to  that  of  his 


470  MILITARY  LAW. 

Iionor  of  the  officer.'  It  is  only  necessary  that  the  conduct  should  be  such 
as  is  at  once  disgraceful  or  disreputable  and  manifestly  unbefitting  both  an 
officer  of  the  army  and  a  gentleman.' 

Conduct  Need  Not  Directly  Affect  the  Military  Service. — To  justify  a 
charo-e  under  this  Article,  it  is  not  necessary  that  the  act  or  conduct  of  the 
officer  should  be  immediately  connected  -with  or  should  directly  altect  the 
military  service.  It  is  sufficient  that  it  is  morally  wrong  and  of  such  a 
nature  that,  while  dishonoring  or  disgracing  him  as  a  gentleman,  it  com- 
promises his  character  and  position  as  an  officer  of  the  Army.' 

private  mess,  food  furnished  by  the  goverumeut  for  hospital  patieuts  was  guilty  of  aa 
ulleuse  under  this  Article.     Dig.  J.  A.  Geu.,  G2,  par.  5. 

The  violation  by  an  officer  of  a  promise  or  pledge  ou  honor  given  by  him  to  a  supe- 
rior, iu  consideration  of  the  withdrawal  by  the  latter  of  charge.s  preferred  for  drunken- 
ness that  he  would  abstain  for  tbe  future,  or  for  a  certain  period,  from  the  use  of 
intoxicating  drink,  lield  chargeable  under  this  Article.     Ibid.,  par.  6. 

The  mere  acceptance  by  an  officer  of  compensation  from  private  parties  (civilians) 
whom,  by  permission  of  his  superior,  he  assists  in  a  private  undertaking,  though  it  may 
be  an  indelicate  act,  is  not  an  oilense  under  this  Article.  Of  tlje  propriety  of  such  con- 
duct an  officer  must  judge  for  himself.     Ibid.,  65,  par.  23. 

The  duplication  of  a  "  pay-roll,"  or  claim  for  monthly  pay,  is  always  an  offense 
under  this  Article.  It  is  no  defense  that  the  transfer  was  made  before  the  pay  was 
actually  due  and  payable,  i.e.,  before  the  end  of  the  mouth.  While  such  a  transfer  may 
be  inoperative  in  view  of  par.  1440,  A.  11.,  in  so  far  as  that  the  Government  may  refuse 
to  recoirnize  it,  it  is  valid  as  between  the  officer  and  the  party,  and  to  allow  the  former 
to  shelter  himself  behind  the  regulatiou  would  be  to  permit  him  to  take  advantage  of 
Ms  own  wrongful  and  fraudulent  act.     Ibid.,  66,  par.  23. 

The  re"-ulation,  par.  1300,  A.  R.  1895,  does  not  assume  to  invalidate,  as  between  the 
parties,  a  Transfer  made  or  dated  before  the  last  day  of  the  month,  nor  could  it  do  so. 
Nor,  though  tlie  money  may  not  be  payable  thereon  by  the  paymaster,  is  the  offense  of 
tiie  otUcer^  under  this  or  the  60th  Article,  any  the  less.  An  officer  has  no  right  to  pre- 
sent for  payment  and  procure  to  be  paid  to  liunself  a  pay  account  of  which  a  duplicate 
remains  outstanding  in  the  hands  of  a  bond  fide  transferee.  The  latter  has  an  (  qiutable,  if 
not  a  legal,  claim  to  the  pay,  and  this  claim  cannot  be  ignored  by  the  officer  without  dis- 
honor. ^Moreoveran  officer  of  the  Army  has  no  right  to  place  the  military  authorities 
in  the  position  of  thus  refusing  to  p:iy  a  hona  fide  holder  of  a  draft  upon  tlie  treasury. 
Such  an  act  compromises  and  discredits  the  United  States  and  the  Government,  ami  Is 
especially  an  offense  in  a  public  officer.     Ibid.,  par.  24. 

It  is  no  defense  whatever  to  a  charge  under  this  Article  that  between  the  date  of  the 
refusal  bv  ibe  United  Stales  to  pay  the  assignee  of  a  duplicated  voucher  and  the  date  of 
the  arrai'"'-ument  of  the  officer  or  of  the  service  of  the  charges,  the  money  due  lias  been 
paid,  or  somehow  scciu'cd  or  made  good  to  the  assignee,  or  that  he  has  been  induced  to 
withdraw  or  suspend  his  claim  against  the  officer.*     Ibid.,  66,  par.  25. 

lletd  that  a  continued  neglect,  without  adetpiate  excuse,  to  satisfy  a  pecuniary  obli- 
gation lonir  overdue,  after  specific  assurances  given  of  speedy  payment,  was  a  dishonor- 
able act  colistituting  an  offense  vmder  this  Article. f     Ibid.,  par,  26. 

'  Ibid.,  61,  par.  1.     See  Genenil  Orders  No.  25,  Dept.  of  the  Missouri,  1867. 

'■'  "  An'  officer  of  the  :irmy  is  bound  by  the  law  to  be  a  gentleman."  Att.-Gen.  Cush- 
iii"-  fiOpins  417.  See  definitions  or  partial  definitions  of  the  class  of  offenses  contem- 
nlated  bv  this  Article  in  G.  O.  45,  Army  of  the  Potomac,  1864;  do.  29,  Dept.  of  Cali- 
fornia, 1865;  do  7.  Dept.  of  the  Lakes,  1872;  G.  C.  M.  O.  69,  Dept.  of  the  East,  1870; 
do   41 '  Hdqrs.  of  Armv,  1879. 

3  Dio-  .1  A.  Gon.,  63,  par.  10.  Thus,  though  a  mere  neglect  on  the  part  of  an  officer 
to  satisfyVis  private  pecuniary  obligations  will  not  ordinarily  furinsh  sufficient  ground 
for'c'iaiges  against  him,  yet  wheie  the  debt  has  been  dishonorably  incurred— as  where 
money  has  been  borrowed  under  false  promises  or  representations  as  to  payment  or 

*  Sep  the  remarks  of  the  reviewing  authority  in  the  cases  published  in  G.  C.  M.  O.  88  of  1886,  and 

+^sle^the  recent  ruling:  to  a  similar  effect  ijy  the  Supreme  Court  in  Fletcher  vs.  U.  S..  148  U.  S.,  91,  93; 
o  the  same  case  in  JG  Ct.  CI.,  541. 


66  of  1893. 

•^  See 
also  the 


TUE  ARTICLES  OF  WAR.  471 

According  to  the  accepted  principle  of  interpretation  by  which  Articles 
of  War  enjoining  a  specific  punishment  or  punishments  are  lield  to  be  in 

security,  or  where  the  non-payment  has  been  accompanied  by  such  circumstances  of 
frau(i,  deceit,  evasion,  denial  of  indet)lediiess,  etc.,  as  to  amount  to  dishonomble  con- 
duct— llie  continued  non-payuieut  in  cunncclion  wilii  the  fiicts  or  circumstances  reuder- 
iui^  it  dislioiionihle  may  proiicrly  be  deemed  to  constitute  an  ollensc  (•h;iri,'eable  under 
this  Article.*     Dig.  J.  A.  Gen.,  GiJ,  par.  11.     Hee,  also,  ibid.,  02,  jJaniL'raphs  4  and  5. 

Neglect  t)r  refusal  to  pay  honest  dehls  may  constitute  an  offense  under  this  Article 
where  so  repeated  or  persistent  as  to  furnish  reasonable  ground  for  inferring  that  the 
otticer  designs  or  desires  to  avoid  or  indefiniteh'  defer  a  settlement.  This  especially 
where  the  debts  are  due  to  noidicrs  for  money  bonowed  from  or  lield  in  trust  foi  them. 
Ibid..  CA,  par.  13. 

An  indifference  on  the  part  of  an  officer  to  his  pecuniary  obligations  of  so  marked 
and  inexcusable  a  character  as  to  induce  rei)eated  just  complaints  to  his  military  com- 
mander or  the  Secretary  of  War  by  his  creditors,  and  to  bring  discredit  and  scandal 
upon  the  nulitary  service,  held  to  constitute  au  offense  within  the  purview  of  this 
Article. f     Ibid.,  par.  14. 

Where  an  ddieer  in  payment  of  a  debt  gave  his  check  upon  a  bank,  representing  at 
tlie  same  lime  that  he  had  funds  there,  when  in  fact,  as  he  was  well  aware,  he  had  none, 
held  that  he  was  amenable  to  a  charge  under  this  Article.     Ibid.,  pur.  12. 

The  following  acts  held  to  cousiitute  offenses  under  this  Article  :  fraudulently  pro- 
curing a  divorce  trom  his  wife  by  an  otlicer;  failure  on  the  part  of  an  officer  to  support 
liis  wife  and  child  without  adequate  excuse  therefor  ;  i)rocuring  or  allowing  himself,  by 
a  retired  officer,  to  be  placed  by  legal  proceedings  under  a  conservator  as  a  habitual 
drunkard.     Ibid.,  05,  par.  20. 

Tlie  institution  by  an  officer  of  fraudulent  proceedings  against  his  wife  for  divorce, 
and  the  manufacture  of  false  testimony  to  be  used  against  lier  in  the  suit  in  connection 
with  an  abandonment  of  her  and  neglect  to  provide  for  her  support,  Iteld  to  constitute 
"  conduct  unbecoming  au  officer  and  a  gentleman  "  iu  the  sense  of  this  Article.  Ihid., 
par.  18. 

Where  an  officer  stationed  in  Utah  was  married  there  by  a  Mormon  official  to  a 
female  with  wliom  he  lived  as  his  wife,  although  having  at  the  same  time  a  legal  wife 
residing  in  the  States,  held  that  he  jnight  projierly  be  brought  to  trial  by  general  court- 
martial  for  a  violation  of  this  Article.  So  held  of  au  officer  who  commUted  bigamy  by 
publicly  contracting  marriage  in  the  United  Stales  while  having  a  legal  wife  liviii'T  iu 
Scotland  whom  he  had  aban(h)ned.     Ihid.,  64,  par.  16. 

Abusing  and  assaulting  liis  wife  l)y  an  officer  at  a  military  post  in  so  public  and 
marked  a  manner  as  to  disturb  the  post  and  bring  scandal  upon  the  service  held  charge- 
able as  an  offense  under  this  Article.     Ibid.,  par.  17. 

Where  certain  officers  of  a  colored  regiment  made  a  practice  of  loaning  to  men  of 
the  regiment  small  amounts  of  money,  for  which  they  charged  and  receiveii  in  payment 
at  the  rate  of  two  dollars  for  one  at  the  next  pay-day,  held  that  they  were  properly  con- 
victed of  a  violatii)n  of  this  Article.     Ibid.,  par.  15. 

Engaging  when  intoxicated  iu  a  light  with  another  officer  in  the  billiard-room  at  a 
post  trader's  establishment  in  the  picsence  of  other  officers  and  of  civilians  ?teld  an 
offense  within  this  Article.  So  heldoi  an  engaging  in  a  disorderly  and  violent  alterca- 
tion and  tight  with  anotlier  officer  in  a  public  place  at  a  military  piist  in  .^iffht  of  officers 
and  soldiers.  So  held  of  an  exhibition  of  himself  by  an  officer  in  a  public  place  in  a 
grossly  drunken  condition.     Ibid.,  63,  par.  8. 

Gambling  per  se  does  not  constitute  a  military  offense.  If  indulged  in,  liowever,  to 
sucli  an  extent  or  in  such  a  manner  as  to  give  it  the  character  of  a  disorder  "  to  the 
prejudice  of  good  order  and  nulitary  discipline"  in  the  sense  of  Article  62.  or  under  cir- 
cumstances so  personally  discreditable  as  to  bring  it  within  the  description  of  "conduct 
unbecoming  an  officer  a\id  a  gentleman,  "  it  mayof  cour.se  be  taken  cognizance  of  bv  a 


*  Cases  of  officers  nmde  amennt)!**  to  trial  hy  ooiirt-martial  under  this  Article  for  the  non  fiilflllment 
of  pecuniary  ol)lisat ions  to  other  ofJU-er.s,  eiiiisfed  m.>ii.  (xist  trailers,  and  civilians  are  found  in  the 
followini;  General  Orders  of  the  War  Dept.  and  Hdqrs.  of  Army:  No.  87  of  !8f.6-  do  .3  r^h  64  of  ISCQ- 
do.  l.'->  of  1870;  do.  17  of  1871;  do.  22,  46of  1872;  do.  10  of  1873;  do.  25,  50.  68.  82  of  1874;  do.  25"of  1875-  do" 
100  of  1879;  do.  46  of  1877. 

+  See.  on  the  subject  of  these  complaints,  the  Circular  issued  oripinallv  from  the  War  Department 
(A.  G.  O.)  on  Feb.  8.  1872,  in  which  the  Secretary  of  War  "declares  his  intention  to  brinp  to  trial  by 
court-martial."  under  the  61st  Article  of  War,  "  any  officer  who,  after  due  notice,  shall  fail  to  auiet 
Buch  claims  a;;ainst  hiiu." 


4:72  MILITARY  LAW. 

this  particular  both  mandatory  and  exclusive,  no  sentence  other  than  one 
of  simple  dismissal  can  legally  be  adjudged  upon  a  conviction  under  this 
Article.  A  sentence  which  adds  to  dismissal  any  other  penalty  or  penalties, 
as  disqualification  for  ottice,  forfeiture  of  pay,  imprisonment,  etc.,  is  valid 
and  operative  only  as  to  the  dismissal,  and  as  to  the  rest  should  be  formally 
disapproved  as  being  unauthorized  and  of  no  effect.' 

Article  62.  All  crimes  not  capital,  and  all  disorders  and  neglects,  which 
officers  and  soldiers  may  be  guilty  of,  to  the  prejudice  of  good  order  and  mili- 
tary discipline,  though  nut  mentioned  in  the  foregoing  Articles  of  War,  are  to 
be  taken  cognizance  of  by  a  general  or  a  regimental,  garrison,  or  field  officers' 
court-martial,  accordi?ig  to  the  nature  and  degree  of  the  offense,  and  punished 
at  the  discretion  of  such  court.'' 

Article  IIG  of  the  military  code  of  Gustavus  Adolphus  contained  the 
provision  that  "  whatsoever  offense,  finally,  shall  be  committed  against  these 
orders,  that  shall  the  several  Commanders  make  good,  or  see  severally 
punished,  unless  themselves  will  stand  bound  to  give  further  satisfaction  for 
it."  '  In  the  King  James  Code  of  1G8G  '  the  Article  assumed  something  of 
its  present  form,  in  the  requirement  of  Article  G4  that  "  all  other  faults, 
misdemeanours  and  disorders,  not  mentioned  in  these  Articles,  shall  be 
punished,  according  to  the  discretion  of  the  Court-Martial;  Provided  that 
no  punishment  amounting  to  the  loss  of  Life  or  Limb,  be  inflicted  upon  any 
offender,  in  time  of  Peace,  although  the  same  be  allotted  for  the  said 
Offense  by  these  Articles,  and  the  Law  and  Customs  of  War."  In 
Article  3,  Section  20,  of  the  British  Code  of  1774  the  provision  appears  in 
the  following  form:  "  All  Crimes  not  Capital  and  all  Disorders  and  Neglects, 
which  Officers  and  Soldiers  may  be  guilty  of  to  the  Prejudice  of  good  Order 

court-niiirlial.  The  Army  Regulations  (par.  .'590)  recognize  it  as  peculiarly  objectionable 
when  practiced  by  a  disbursing  officer.*     Dig.  J.  A.  Gen.,  427.  .     ,     .  , 

Gambling  with  enlisted  men  in  a  public  place,  held  an  offense  within  Ihis  Article. 
And  so  of  frequenting  in  uniform  a  disreputable  gambling-house  and  gambling  with 
gamesters.     Ibid.,  63,  par.  9.  ,,.,,-        i<-  • 

Where  an  officer  appeared  in  uniform  at  a  theatre,  drnnk,  and  conducted  himselt  in 
such  a  disorderly  manner  as  to  attract  the  attention  of  officers  and  .soldiers  who  were 
present,  as  well  as  the  audience  generally,  field  that  he  was  properly  convicted  of  a  vio- 
lation of  this  Article.     Ibid.,  62,  par.  7. 

>7Md.,  65,  par.  19.  ^  ^„„  ^         .  .     ..  »v 

■'  Section  3  of  the  Act  of  .July  27,  1892,  (27  Statutes  at  Large,  277,)  contained  the 
requirement  that  "  fraudulent  enlistment,  and  the  receipt  of  any  pay  or  allowance  there- 
under, is  hereby  declared  a  military  offense  and  made  punishable  by  court-martial, 
under'the62d  Article  of  War."  ■,<.».•, 

3  Tlie  Articles  of  Gu.stavus  Adolphus,  which  appeared  in  1621  under  the  title  Articles 
and  Military  Lawes  to  be  observed  in  the  Warres,"  will  be  found  printed  in  full  in  Vol. 
II.  of  Wiuthrop,  Military  Law,  p.  8  of  Appendix. 

*  For  a  copy  of  this  code  see  II.  Grose  Mil.  Antiquities,  139.      • 

*  Sep  in  G  C  M  O.  18,  War  Dept..  1871,  a  case  of  a  disbiirsinK  offlcpr  convicted  of  {rambling  as  an 
oflfen<!e  under  Article  62:  and  note  the  remarks  of  the  reviewing  authority  upon  an  m stance  of  this  class 
in  G  O  2  Dept  of  Arizona,  1878.  In  an  earlv  case-in  G.  O.  104,  Hdqrs.  of  Army,  18a?--it  was  held 
that'a  claim  by  a  disbursing  ofBcer  that  he  had  playe.i  for  too  small  stakes  to  endanger  the  safety  or 
the  public  funds  entrusted  to  his  charge  was  not  a  sufficient  excuse  for  his  gambhng,  m  view  of  the 
regulation. 


THE  ARTICLES  OF   WAIt.  473 

and  Military  Discipline,  tliough  not  mentioned  in  the  above  Articles  of  War, 
are  to  be  taken  Cognizance  of  by  a  (Jenerul  or  Regimental  Court-Martial, 
and  be  punished  at  their  Discretion."  in  this  form  it  appeared  as  Article 
o,  Section  IS,  of  the  American  Articles  of  1776,  in  which  tlie  clause  con- 
ferring jurisdiction  to  try  offenses  under  the  Article  "according  to  the 
nature  and  degree  of  the  offense  "  was  added.  As  so  moditied  the  provision 
was  re-enacted  in  the  revisions  of  1806  and  1874.' 

Nature  of  the  Offense. — This  Article,  like  that  last  described,  is  an 
apparent  exception  to  the  rule  that  offenses  against  the  United  States  must 
be  exactly  described  in  the  statutes  creating  them,  in  that  it  establishes  cer- 
tain conditions  to  wliich  a  wrongful  act  or  omission  must  conform  in  order 
to  give  it  the  character  of  a  military  offense  and  authorize  its  trial  by  a  mili- 
tary tribunal.  The  ott'eiises  over  which  jurisdiction  is  conferred  must 
therefore  conform  strictly  to  the  conditions  set  forth  in  the  statute;  that  is, 
they  must  be  either  "crimes  not  capital  "  or  "  neglects  and  disorders,"  and 
to  warrant  their  trial  by  court-martial  must  in  every  case  operate  "  to  the 
prejudice  of  good  order  and  military  discipline."  The  offense  must  in 
general  be  committed  by  a  military  person,  and  in  every  case  by  a  person 
subject  to  military  jurisdiction.' 

Crimes. — The  word  "  crimes  "  in  this  Article,  distinguished  as  it  is  from 
"  neglects  "  and  "  disorders,"  relates  to  military  offenses  of  a  more  serious 
character  than  mere  neglects  and  disorders,  and  includes  such  as  are  also 
civil  crimes — as  homicide,  robbery,  arson,  larceny,  etc.  "  Capital  "  crimes 
(i.e.,  crimes  capitally  punishable),  including  murder,  or  any  grade  of 
murder  made  capital  by  statute,  cannot  be  taken  cognizance  of  by  courts- 
martial  under  this  Article.' 

Neglects  and  Disorders.  ^A  "  neglect  "  is  an  omission  or  forbearance  to 
do  a  thing  that  can  be  done  or  that  is  required  to  be  done.*  In  its  ordinary 
meaning  it  is  an  omission,  from  carelessness,  to  do  something  that  can  be 
done  or  ought  to  be  done.  The  obligation  to  perform  the  act  or  thing 
neglected  is  military  in  character,  and  arises  in  connection  with  the  require- 
ments of  military  duty.     Law,  regulations,  orders,  and,  where  these  are 


'  This  requirement  was  known  in  the  English  service  as  "The  Devil's  Article." 

*  See  the  chapters  entitled  Juuisdiction  of  Couhts-maktial  and  Chakges  and 
Spkcifkationb 

^  Diix  J.  A.  Goii.,  67,  par.  1.  A  crime  which  is  in  fact  murder,  and  capital  by  statute 
of  the  I'liited  States  or  of  the  Stale  in  which  committed,  cannot  be  brought  within  the 
jiiiisdictioii  of  u  court-martial  under  thi>  Article,  hy  churging  it  as  "manslaughter,  to  the 
prejudice,"  etc.,  or  simply  as  "  comiuct  to  the  prejudice,"  etc.*  If  the  specitication  or 
the  proof  shows  that  the  crime  was  murder  and  a  capital  offense,  tiie  court  sliould  refuse 
to  take  jurisdiction  or  to  tind  or  sentence.  If  it  a.ssume  to  do  so.  the  proceedings  should 
be  disapproved  as  unauthorized  and  void.  Ibid.  See,  also,  the  58th  Article  of  War, 
supra. 

*  Anderson  Law  Diet. 


*  See  thi.'^  opinion,  as  given  in  an  Important  case,  adopted  by  the  Secretary  of  War  in  his  action  on 
the  same  published  in  G.  C.  M.  O.  J,  War  Dept.,  1871;  also  the  similar  rulings  in  Q.  C.  M.  O.  viS  Dept  of 
Texas,  1875;  Q.  O.  14,  Dept.  of  Dakota,  1368;  do.  104,  Army  of  the  Potomac,  1862. 


474  MILITARY  LAW. 

silent,  the  custom  of  service  prescribe  the  several  military  duties  and  obliga- 
tions the  neglect  of  which  is  chargeable  under  this  Article;  the  evidence 
submitted  in  a  particular  case  shows  the  manner  in  which  the  duty  was  per- 
formed, and  the  particulars  in  respect  to  which  there  has  been  criminal 
neglect,'  The  term  "disorder,"  as  used  in  this  connection,  is  more  com- 
prehensive than  when  used  in  reference  to  civil  affairs,  and  includes  not  only 
disorders,  in  the'seuse  of  frays,  quarrels,  and  the  like,  but  all  interruptions 
of  the  good  order  which  should  prevail  in  camp  or  garrison  and  willful 
departures  from  that  orderly  recurrence  of  events  wliich  constitutes  military 
discipline  and  which  are,  as  such,  harmful  or  prejudicial  to  good  order  aud 
military  discipline.' 

'  To  constitute  negligence  at  criminal  law  the  duty  Deglected  raust  have  been  created 
or  imposed  by  law  or  contract.  Military  negligence  dilicrs  from  this  in  that  the  duty 
must  be  created  by  law,  orders,  regulations,  or  by  custom  of  service.  No  military  duties 
can  be  created  by  contract  or  agreement,  or  be  made  the  sul)ject  of  a  contractual  rela- 
tion. The  neglect  of  a  duty  of  a  personal  character,  created  by  contract,  may  give  rise 
to  a  prosecution  under  this  Article,  as  will  be  seen  by  an  inspection  of  the  cases  referred 
to  in  the  next  note. 

'  The  following  offenses  have  been  held  properly  charged  or  chargeable  under  this 
Article  as  disorders  or  neglects  "  to  the  prejudice  of  good  order  and  military' discipline  :" 
Drunkenness  or  drunken  and  disorderly  conduct,  at  a  po.st  or  in  public,  commitied  by  a 
soldier  or  officer  when  not  "  on  duty,"  and  when  the  act  (in  the  case  of  an  officer)  does 
not  more  properly  fall  within  the  description  of  Art.  61  ;  escape  from  military  conline- 
meat  or  custody  (where  not  amounting  to  desertion,  see  Article  47) ;  breach  of  arrest 
(where  not  properl}'  chargeable  under  Art.  65)  ;  malingering  ;  disclosing  a  finding  or 
sentence  of  a  court-martial  in  contravention  of  the  oath  prescribed  in  Art.  84  or  85; 
refusing  to  testify  when  duly  reiiuired  to  attend  and  give  evidence  as  a  witness  before 
a  court-martial  ;  joining  with  other  inferior  officers  of  a  regiment  in  a  letter  to  the  colo- 
nel asking  him  to  resign  ;  neglecting,  by  a  senior  officer  "present  for  duty"  with  his 
regiment,  to  assume  the  command  of  the  same  when  properly  devolved  upon  him,  and 
allowing  such  command  to  be  exercised  by  a  junior  ;  culpable  malpractice  bj'  a  medical 
officer  in  the  course  of  his  regular  military  dutj'  ;  colludinir  with  bounty  brokers  in 
procuring  fraudulent  enlistmenis  to  be  made  and  bounties  to  be  paid  thereon  ;  viola' 
lions  by  an  officer  of  par.  680,  Army  Regulations  of  1895,  in  bidding-in  and  purchasing, 
through  another  party,  public  property  sold  at  auction  by  himself  as  quartermaster;  also, 
in  purchasing  subsistence  stores  ostensibly  for  domestic  use,  but  really  for  purposes  of 
trahic. 

Violations,  indeed,  of  Array  Regulations  in  general  are  properly  chargeable  under 
this  Article;  as  are  neglects  (or  disorders)  to  the  prejudice  of  good  order  and  military 
discipline:  causing  (by  a  quartermaster)  troops  to  be  transported  upon  a  steamer  known 
by  him  to  be  unsafe  ;  paying  money  due  under  a  contract  (for  military  supplies)  to  a 
party  to  whom,  with  the  knowledge  of  the  accused,  the  contract  had  been  transferred  in 
contravention  of  Sec.  37o7,  Rev.  Sts. ;  inciting  (by  an  officer)  another  officer  to  challenge 
him  to  fight  a  duel  ;  a.ssuming  (by  a  soldier)  to  be  a  corporal  in  the  recruiting  service, 
and  as  such  enlisting  recruits  and  obtaining  board  and  lodging  for  himself  and  recruits 
without  paying  for  same  ;  procuring  (by  a  soldier)  whiskey  from  the  post  trader  by  forg- 
ing an  order  for  the  .same  in  the  name  of  a  laundress  ;  breach  of  faith  (by  a  soldier)  in 
refusing  to  pay  the  post  trader  for  articles  obtained  on  credit,  upon  orders  on  him  which 
had  been  guaranteed  or  approved  by  the  company  commander  upon  the  condition  that 
the  amounts  should  be  paid  on  the  next  pay-day;  gambling  by  officers  or  soldiers  under 
such  circumstances  as  to  impair  military  discipline  (where  the  conduct,  in  the  case  of  an 
officer,  does  not  rather  constitute  an  offense  under  Article  61)  ;  striking  a  soldier,  or  using 
any  unnecessary  violence  against  a  soldier,  by  an  officer.     Dig.  .J.  A.  Gen.,  69,  par.  6. 

The  following  are  examples  of  offenses  which  have  been  held  cognizable  under  Article 
62:  Neglect  on  the  part  of  an  officer  of  engineers  to  oversee  the  execution  of  a  contract 
for  a  public  work  placed  under  his  charge,  the  due  fulfillment  of  such  charge  being  a 
military  duty;  a  public  criticism  in  a  newspaper  b}'  an  officer  of  a  case  which  had  been 
investigated  by  a  court-martial  and  was  awaiting  the  action  of  the  President ;  assuming 


TUE  ARTICLES   OF    WAli.  475 

Prejudice  of  Good  Order  and  Military  Discipline.— The  term  "to  the 
prejudice  of  good  order  and  military  discipline  "*  (jualifies,  according  to  the 
accepted  interpretation,  the  word  "  crimes  "  as  well  as  the  words  "  disorders 
and  neglects."  Thus  the  crime  of  larceny  (sometimes  charged  as  "  theft  " 
or  "  stealing")  is  held  chargeable  under  this  Article  when  it  clearly  affecta 
the  order  and  discipline  of  the  military  service.  Stealing,  for  example,  from 
a  fellow  soldier  or  from  an  otlicer  or  stealing  of  ])ublic  money  or  other 
public  property  (wliere  the  offense  is  not  more  properly  a  violation  of  Article 
GO),  is  generally  so  chargeable.  And  so  of  any  other  crime  (not  capital)  the 
commission  of  which  lias  prejudiced  military  discipline.' 


by  an  officer  to  copyright  as  owner,  and  thus  asserting  the  exclusive  right  to  publish,  in 
an  abridged  form,  the  Infantry  Drill  Regulations,  property  of  the  United  States,  and  the 
fornuil  oUicial  publication  of  which  had  already  been  announced  in  orders  by  ihe  Secre- 
tary of  War  ;  selling  condemned  military  stores  by  an  officer  without  tiue  notice,  and  not 
suspending  the  sale  when  better  prices  could  have  been  obtained  by  deferring  it,  in  vio- 
lation of  par.  079,  A.  R.  1895  ;  nnsconduct  by  a  soldier  at  target-practice,  consisting  of 
breaches  of  the  published  instructions,  false  statements  or  markings  with  a  view  fraudu- 
lently to  increase  a  score,  etc.;  violation  by  a  soldier  of  a  pledge  given  lo  his  command- 
ing ofHcer  to  abstain  from  intoxicating  liquors,  on  the  faith  of  which  a  previous  offense 
was  condoned  ;  bigamy  by  a  soldier  committed  at  a  military  post.  Dig.  J.  A.  Gen.,  73, 
par.  12. 

Tiie  following  acts  held  not  to  be  cognizable  as  offenses  under  this  Article  :  a  resort  t-^ 
civil  proceedings  by  suit  against  a  superior  officer  on  account  of  acts  done  in  the  per- 
formance of  military  duty  (but  held  that  if  the  verdict  should  be  for  the  defendant,  and 
it  should  appear  tliat  the  suit  was  without  probable  cause  and  malicious,  a  charge  under 
this  Article  nnglit  perhaps  be  sustainable):  the  mere  loaning  of  money  at  usurious  or 
excessive  rates  of  interest  by  a  non-commissioned  officer  to  privates,  uidess  it  should 
clearly  l)e  made  to  appear  that  such  conduct  promoted  desertions  or  other  results  preju- 
dicial'to  the  discipline  of  the  command,  (but  as  the  practice  in  this  case  had  been  long 
continued,  and  was  clearly  demoralizing,  advised  that  the  non-commissioned  officer  be 
summarily  discharged)  ;  the  becoming  infected  by  a  soldier  with  a  disease  uufittins  him 
for  service,  as  the  result  of  vicious  conduct  ;  the  living  in  adultery  by  a  soldier  at  Piatts- 
burg  village,  where  he  was  permitied  to  reside,  situate  about  a  mile  from  Plaltsburg 
Banacks  {advised  in  this  case  that  the  offetider  be  turned  over  to  tiie  civil  authorities 
for  trial  under  the  laws  of  New  York).     Ibil.,  74,  par.  13. 

The  following  acts  or  offenses  have  been  held  to  be  not  properly  chargeable  under 
tills  Article  :  a  mere  breach  of  the  peace  committed  by  a  soldier  (wliile  absent  alone  and 
at  a  distance  from  his  post)  in  a  street  of  a  city,  and  in  violation  of  a  municipal  ordinance; 
pecuniary  transactions  between  enlisted  men  of  a  culpable  character,  but  in  their  private 
capacity  and  not  directly  affecting  the  service  or  impairing  military  discipline  ;  speculat- 
ing and  gambling  in  stocks  by  a  disbursing  officer,  the  proper  performance  of  whose 
military  duty  was  not  affected  (but  recommend' d  that  he  be  relieved  from  the  duty  of 
disbursing  public  money)  :  re-enli^tinii  by  the  procurement  of  the  recruiting  officer, 
after  having  been  discharged  for  a  disability  still  continuing  ;  the  act  being  in  good  faith, 
and  the  alleged  offense  being  committed  before  the  party  could  be  said  to  have  fully 
come  into  the  service,     fbid.,  71,  par.  7. 

'  Die.  J.  A.  Gen.,  67,  par.  2.  As,  for  example,  man.slauixhter  lOr  homicide  not 
amounting  to  murder)  of  a  soldier,  assault  with  intent  to  kill  a  fellow  soldier  :  for- 
gery <if  the  name  of  a  disbursing  or  other  military  officer  to  a  government  clieck  or  draft, 
or  forgery  of  an  officer's  name  to  a  check  on  a  l)ank  (anil  this  wliether  or  not  anythitig 
was  in  fact  lost  by  the  government  or  the  bank  or  officer)  ;  forgery  in  signing  the  name 
of  a  fellow  soldier  to  a  certiticate  of  indebtedness  to  a  sutler,  or  to  an  order  on  a  pay- 
master; embezzlement  or  misappropriation  of  the  property  of  an  officer  or  soldier.     Jbid. 

No  distinction  of  grand  and  petit  larceny  is  known  to  military  law.  An  inferior  court 
has,  under  this  Article,  the  same  jurisdiction  of  larceny  as  has  a  general  court.  This 
crime,  however,  is.  in  general,  one  requiring  too  severe  a  sentence  to  be  adequately  pun- 
ished by  an  inferior  court-martial.      Ibid..  69.  par,  4. 

Held  that  a  specitication  alleging  homicide,  but  not  adding  "  with  malice  afcre- 


476  MILITARY  LAW. 

As  to  whether  an  act  which  is  a  civil  crime  is  also  a  military  offense  no 
rule  can  be  laid  down  which  will  cover  all  cases,  for  the  reason  that  what 
may  be  a  military  offense  under  certain  circumstances  may  lose  that  character 
under  others.  For  instance,  larceny  by  a  soldier  from  a  civilian  is  not 
alway  a  military  crime,  but  it  may  become  such  in  consequence  of  the  par- 
ticulur  features,  surroundings,  or  locality  of  the  act.  What  these  may  be 
cannot  be  anticipated  with  a  sweeping  rule  comprehensive  enough  to  pro- 
vide for  every  possible  conjunction  of  circumstances.  Each  case  must  be 
considered  on  its  own  facts.  Bat  if  the  act  be  committed  on  a  military 
reservation,  or  other  ground  occupied  by  the  army,  or  in  its  neighborhood, 
so  as  to  be  in  the  constructive  presence  of  the  army ;  or  if  committed  while 
on  duty,  particularly  if  the  injury  be  to  a  member  of  the  community  whom 
it  is  the  offender's  duty  to  protect;  or  if  committed  in  the  presence  of  other 
soldiers,  or  while  in  uniform;  or  if  the  offender  use  his  military  position,  or 
that  of  another,  for  the  purpose  of  intimidation  or  other  unlawful  influence 
or  object — such  facts  would  be  sufficient  to  make  it  prejudicial  to  military 
discipline  within  the  meaning  of  the  63d  Article  of  War.' 

Charging  of  Offenses. — A  crime,  disorder,  or  neglect  cognizable  under 
this  Article  may  be  charged  either  by  its  name  simply,  as  "larceny," 
*'  drunkenness,"  "  neglect  of  duty,"  etc. ;  or  by  its  name  with  the  addition 
of  the  words  "to  the  prejudice  of  good  order  and  military  discipline";  or 
simply  as  "conduct  to  the  prejudice  of  good  order  and  military  discipline"; 
or  as  a  "violation  of  the  G2d  Article  of  War. "    It  is  immaterial  in  which  form 

thought,"  or  in  terms  to  that  effect,  was  a  pleading  of  iiiauslaughter  only  and  thus  within 
Ibis  Article.     Ditr.  J.  A.  Gen.,  7:5,  par.  10.  ^ 

Held  that  for  an  officer  to  print  and  publish  to  the  Army  a  criticism  upon  an  official 
repoit  made  by  another  officer  in  the  course  of  his  duty  to  a  common  superior,  charging 
that  such  report  was  erroneous  and  made  with  an  improper  and  interested  motive,  was 
gravely  unmilitary  conduct  to  the  prejudice  of  good  order  and  military  disciplioe.  An 
officer'wh)  deems  liimself  wronged  by  an  official  act  of  another  officer  should  prefer 
charges  against  the  latter  or  appeal  for  redress  to  the  pioper  superior  authority.  He  is 
not  permitted  to  resort  to  any  form  of  publication  of  his  strictures  or  grievances.  So  held 
that  for  an  officer  to  publish  or  allow  to  be  pul)]ished  in  a  newspaper  of  general  circula- 
tion charges  and  insinuations  au-ainst  a  brother  officer  by  which  his  character  for  cour- 
age and  ironesty  is  aspersed  and  lie  is  held  uj)  to  odium  and  ridicule  before  the  Army  and 
the  community  was  a  highly  unmilitary  proceeding  and  one  calling  for  a  serious  pun- 
ishment upon  a  conviction  under  this  Article,  and  this  whether  or  not  the  charges  as  pub- 
lished were  true.     Ihid.,  69,  par.   5  . 

'  Opin.  .T.  A.  Gen.,  Manual  for  Courts-martial,  16,  par.  7.  Whether  acts  committed 
against  civilians  are  offenses  within  this  Article  is  a  qiiestion  to  be  determined  by  the 
circumstances  of  each  case,  and  in  regard  to  which  no  general  rule  can  Ix;  laid  down.  If 
the  offense  be  committed  on  a  military  reservation,  or  other  premises  oc(Mipied  by  the 
Army,  or  in  its  neighborhood  so  as  to  be,  so  to  speak,  in  the  constructive  presence  of  the 
Army;  or  if  committed  by  an  officer  or  soldier  while  on  duty,  particularly  if  the  injury 
is  done  to  a  member  of  the  community  whom  the  offender  is  speci^dly  required  to  pro- 
tect ;  or  if  committed  in  the  presence  of  otln-r  soldiers,  or  while  the  offender  is  in  uni- 
form; or  if  the  f)ffender  uses  his  military  !)osit,ion  or  that  of  a  military  superior  for  the 
purpose  of  intimidation  or  other  unlawful  inMuenceor  object— the  offense  will  in  gene- 
ral properly  be  regarded  as  an  act  i^rejudicial  to  good  order  and  military  discipline  and 
cognizableV  a  court-martial  under  this  Article.  The  judgment  on  the  subject  of  a  court 
of  military  officers,  experts  as  to  such  ca.-es,  confirmed  by  the  proper  reviewing  com- 
mander, should  be  reluctantly  disturbed.     Ibid.,  71!,  par.  11. 


THE  ARTICLES  OF   WAR.  477 

the  charge  is  expressed,  provided  the  specification  sets  forth  facts  constitnt- 
ing  an  act  prima  facie  prejudicial  to  good  order  and  military  discipline. 
Whenever  the  charge  and  .sj)ecitication  taken  together  make  out  a  statement 
of  an  act  clearly  thus  j)rejudicial,  etc.,  the  pleading  will  be  regarded  as  sub- 
stantially surticient  under  this  general  Article.' 

Findings  under  Article  62  as  a  Minor  included  Offense. — Where  an 
accused  is  charged  with  "conduct  unbecoming  an  otlicer  and  a  gentleman," 
or  with  any  s])ecific  offense  nuide  punishable  by  the  Articles  of  War,  and  the 
court  is  of  opinion  that,  while  the  material  allegations  in  the  specification  or 
specifications  are  substantially  made  out,  they  do  not  fully  sustain  the  charge 
as  laid,  but  do  clearly  establish  the  commission  of  a  neglect  of  military  duty 
or  a  disorder  in  breach  of  military  discipline  as  involved  in  the  acts  alleged, 
the  accused  may  properly  be  found  guilty  of  the  specification  (or  specifica- 
tions), and  not  guilty  of  the  charge  but  guilty  of  "conduct  to  the  prejudice 
of  good  order  and  military  discipline."  Such  a  form  of  finding  is  now 
common  in  our  practice  (especially  where  the  charge  is  laid  under  Article 
61),  and  its  legality  is  no  longer  questioned.' 

The  authority  thus  to  find,  however,  has  not  been  extended  beyond  the 
case  indicated  in  the  last  paragraph;  the  reverse,  for  example,  of  this  form 
of  finding  has  never  been  sanctioned.'' 

Tiie  general  finding  of  "  conduct  to  the  prejudice,"  etc.,  in  the  cases 
indicated  in  the  foregoing  2)aragraph,  is  sanctioned  in  order  to  prevent  a 

'  Dig.  J.  A.  Geu.,  72.  par.  8.  A  charge  of  "  conduct  to  the  prejudice,"  etc.,  with  a 
specification  setting  forth  merely  trials  aiid  convictions  of  the  accused  for  previous 
offenses,  is  not  a  pleading  of  an  offense  under  this  Article,  or  of  any  military  ofTense.  So 
of  a  charge  of  "  habitual  drunkenness  to  the  prejudice,"  etc.,  with  a  specification  set- 
ting forth  instances  in  which  tiie  accused  has  been  sentenced  for  acts  of  drunkenness. 
Such  charges  indeed  are  in  contravention  of  the  principle  that  a  party  shall  not  be  twice 
tried  for  the  same  olTense.  So  a  specification  under  the  charge  of  "conduct  to  the 
prejudice,"  etc.,  wliich  sets  forth  not  a  distinct  offense,  but  simply  the  result  of  an 
aggregation  of  sinnlar  offenses,  is  insufficient  in  law.  Where  the  specifications  to  such 
a  charge,  in  tiie  case  of  an  officer,  set  forth  tliat  the  accused  was  "  f recpiently  '"  drunk, 
"frequently"  absented  himself  without  authority  from  his  command,  etc.,  held  that 
these  specifications  were  properly  struck  out  by  the  court  on  the  motion  of  the  accused. 
In  such  a  case  the  only  correct  pleading  is  a  general  charge  vinder  this  Article,  with 
specifications,  each  sotting  forth  separate!}',  some  particular  and  specific  instance  of 
offense.     Ibid.,  par.  9. 

ILld  that  a  specification  alleging  homicide,  but  not  adding  "with  malice  afore- 
thoiifjht."  or  in  terms  to  that  effect,  was  a  pleading  of  manslaughter  only,  and  thus 
within  this  Article.     Ibid.,  73,  par.  10. 

«  Ibid.,  411.  par.  10. 

^  Ibid.,  par.  11.  A  finding  of  guilty  of  a  certain  specific  offense  under  a  charge  of 
aiioliier  specific  offense,  or  under  a  charge  of  ''conduct  unbecoming  an  otticer  and  a 
gentleman  "  or  of  "conduct  to  the  prejudice  of  good  order  and  military  discipline," 
would  be  wholly  irregular  and  invalid.  Tims  a  finding  of  guilty  of  disobedience  of 
orders  (or  of  a  violation  of  Article  21)  under  a  charge  of  mutiny  in  violation  of  Article 
23,  or  a  finding  of  drunkenness  on  duty  (or  of  a  violation  of  Article  38)  under  a  charge 
for  a  drunken  disonier  laid  under  Article  62  or  fU.  would  be  not  only  unautht)rized.  but 
now  almost  unprecedented,  and  if  such  .a  rinding  were  made  it  could  scarcely  fail  to  be 
formally  disapproved.  And  so  of  a  riniiing  of  "conduct  unbecoming  an  otticer  and  a 
gentleman  "  under  a  charge  of  "  conduct  to  the  prejudice  of  good  order  and  military 
discipline."     7Wd.,  par.  11. 


478  MILITARY  LAW. 

failure  of  justice,  not  for  the  purpose  of  relieving  the  accused  of  any  of  his 
due  share  of  culiiability.  It  should  not,  therefore,  be  resorted  to  where  the 
specific  offense  charged  is  substantially  made  out  by  tlie  testimony.' 

Article  63.  All  retainers  to  the  camp,  and  all  persons  serving  with  the 
armies  of  the  United  States  in  the  field,  though  not  enlisted  soldiers,  are  to  he 
fuhject  to  orders  according  to  the  rules  and  discipliiie  of  war. 

This  provision  appeared  for  the  first  time  as  a  military  regulation  as 
Article  23,  Section  14,  of  the  British  Code  of  1749,  and  was  repeated  with- 
out substantial  change  in  the  British  Code  of  1774,  and  in  the  American 
Articles  of  1776,  1806,  and  1874. 

The  accepted  interpretation  of  this  Article  is  that  it  subjects  (in  time  of 
war)  the  classes  of  persons  specified  not  only  to  military  discipline  and 
crovernment  in  general,  but  also  to  the  jurisdiction  of  courts-martial  (upon 
the  theory,  probably,  that  they  are  thus  made,  for  the  time  being,  a  part  of 
the  Army).  Individuals,  however,  of  the  class  termed  "retainers  to  the 
camp,"  or  oflBcers'  servants  and  the  like,  as  well  as  camp-followers  generally, 
have  rarely  been  subjected  to  trial  in  our  service.  For  breaches  of  discipline 
committed  by  them  the  punishment  has  generally  been  expulsion  from  the 
limits  of  the  camp  and  dismissal  from  employment.' 

The  discipline  authorized  by  the  Article  has  nuiinly  been  applied  to  the 
description  of  "  persons  serving  with  the  armies  of  the  United  States  in  the 
fleld  "—that  is  to  say,  civilians  employed  by  the  United  States  or  serving  in 
a  (/wrtSi-military  capacity  in  connection  with  troops  in  time  of  war  and  on 
its  theatre.'  But  the  mere  fact  of  employment  by  the  government  pending 
a  general  war  does  not  render  the  civil  employee  so  amenable.  The 
employment  must  be  in  connection  with  the  army  in  the  field  and  on  the 
theatre  of  hostilities.'' 

Civil  employees  of  the  United  States  serving  with  the  Army  in  the  field 
during  active  warfare  with  hostile  Indian  tribes  have  been  held  amenable  to 


■'  Dig.  J.  A.  Gen.,  412,  par.  12.  Thus  in  a  case  where  the  facts  set  forth  in  the  speci- 
fication to  a  charge' of  "  conduct  unbecoming  an  officer  and  a  gentleman,"  and  clearly 
established  by  the  evidence,  fixed  unmistakably  upon  the  accused  dishonorable  behavior 
compromising  him  officially  and  socially,  heldWml  a  finding  by  the  court  that  he  was 
guilty  only  of  "conduct  to  the  prejudice  of  good  order  and  military  discipline  should 
not  be  accepted,  but  that  the  court  should  be  leconvened  for  the  purpose  of  inducing,  if 
practicable  a  finding  in  accordance  with  the  facts  and  with  justice.     Ihid. 

'Dig  J.  A.  Gen.,  75,  par.  1.  For  a  discussion  of  the  question  of  jarisdiction 
involved,  see  the  chapter  entitled  Jurisdiction  of  Courts- martial. 

2  Ibid. ,  par  2.  . 

"  Ibid  Thus  during  the  late  war  civilians  of  the  following  classes  were  m  repeated 
cases  held  amenable  under  this  Article  to  the  military  jurisdiction,  and  subjected  to  trial 
and  punishment  by  courts  martial  :  teamsters  employed  with  wagon-trains,  watchmen, 
laborers  and  other  employees  of  the  quartermasters,  subsistence,  engineer,  ordnance, 
provost  marsh  a  etc.,  departments;  ambulance-drivers,  telegraph-operators,  interpret- 
ers guides,  paymasters'  <'lerks,  veterinary  surgeons,  "contract"  surgeons,  nurses  and 
hospital  attendants:  conductors  and  engineers  of  railroad  trains  operated  upon  the  the- 
atre of  war  for  military  purposes;  officers  and  men  employed  on  government  transports, 
etc.     Ibvi. 


THE  ARTICLES  OF  WAR.  479 

trial  by  court-martial  nnder  tliis  Article.  A  civilian  who  acted  as  gaide  to 
a  command  operating  in  a  hostile  movement  during  an  Indian  war,  for 
example,  has  also  been  held  so  triable.' 

The  jurisdiction  authorized  by  this  Article  cannot  be  extended  to 
civilians  employed  in  connection  with  the  Army  in  time  of  peace,  nor  to 
civilians  employed  in  such  connection  during  the  period  of  an  IinJian  war 
but  not  on  the  theatre  of  snch  war.  In  view  of  the  limited  theatre  of  In- 
dian wars  this  exceptional  jurisdiction  is  to  be  extended  to  civilians,  on 
account  of  offenses  committed  dnring  such  wars,  with  even  greater  caution 
than  in  a  general  war.' 

Article  64.  Tito  officers  and  soldiers  of  any  irrx)ps,  luhdhcr  militia  or 
others,  mustered  and  in  ^m?/  of  the  United  States  shall,  at  all  times  and  in 
all  places,  be  governed  by  the  Articles  of  War,  and  shaU  be  subject  to  be  tried 
by  courts-martial. 

The  subjection  even  of  military  persons  to  the  operation  of  the  Articles 
of  War  has  been  a  gradual  process,  extending  in  the  British  service  over 
nearly  two  centuries,  and  has  been  due  to  the  fact  that  extensions  of  the 
military  code  to  persons  other  than  officers  and  soldiers  in  pay  has  been,  from 
the  first,  narrowly  watched  and  at  times  strenuously  opposed  by  Parlkaiiient.' 
The  terms  of  the  first  ]\Iutiuy  Act  applied  only  to  persons  mustered  and  in 
pay  as  officers  and  soldiers.*     The  provisions  of  the  Act  were  extended  to 

'  Dig.  J.  A.  Gen.,  76,  par.  4.  Held  (June,  1863) that  the  force  employed  in  the  "ram 
fleet"  on  Western  waters  was  properly  a  contingent  of  the  Ainiy  rather  than  of  the 
Navv,  and  accordingly  that  civilian  commanders,  pilots,  and  engineers  employed  upon 
such  fleet  during  the  war  and  before  the  enemy  were  persons  serving  with  the  armies  in 
the  tield  in  the  sense  of  this  Aiiiele,  and  therefore  amenable  to  trial  by  court-martial. 

•^  Ibid.,  par.  5.  A  civil  employee  of  the  United  States  in  time  of  peace  is  most  clearly 
not  made  amenable  to  the  military  jurisdiction  and  trial  by  courl-marliul  by  the  fact  that 
he  is  employed  in  an  office  connected  with  the  administration  of  the  miliiaiy  bramii  of 
the  Government.  Such  emplovment  does  not  make  him  a  part  of  the  military  establish- 
ment, nor  is  his  offense,  however  nearly  it  may  affect  the  miUtary  ser%dce,  "  a  case  arts- 
ing  in  the  land  forces"  in  the  sense  of  Article  V  of  the  Amendments  to  the  Constitu- 
tion. So  hdd  (June.  1877)  that  a  civilian  clerk  employed  in  time  of  peaoe  in  tlie  office 
of  the  chief  quartermaster  at  San  Francisco  was  manifestly  not  amenable,  under  this 
Article  or  otherwise,  to  trial  bv  court-martial  for  the  emb.  zzknient  or  misapplication  of 
Government  funds  appropriated  for  the  (piarterma'ter  department.*  And  remarkni 
that  if  this  official  rouhl  be  nmde  liable  to  such  iuri.sdiction.  all  the  male  ami  female 
clerks  employed  in  the  War  Department  might  upon  the  .-^ame  principle  be  held  thus 
amenable  for  offen.ses  a-^ainst  thr  Government  committed  in  connection  with  theirduties. 
And  so  held  in  the  case  of  a  civilian  clerk  employed  at  Camp  Kobmson  :sebraska, 
charied  with  conspirin"  with  contractors  to  defraud  the  I  nited  States;  the  post  not 
being  within  the  theatre  of  any  Indian  war,  or  hostilities  pending  at  the  period  of  the 
offense. f     Ibid..  77.  jiar.  7.  ^    ■  ^     t  ,v. 

Held{X\n\\.  1S77)  that  superintendents  of  national  cemeteries,  being  no  part  ot  ttie 
Army,  but  civilians  (,^ee  Sec.  4874.  Rev.  Sts.),  were  clearly  not  amenable  lo  military 
jurisdiction  or  trial  under  this  Article  or  otherwise. t     i/'/d.,  l>ar.  8.  ^      ^^ 

3  Clode,  Mil.  Law.  59.     The  conjunction  "  and  "  was  omitted  and  replaced  by     or 
by  6  Anne,  ch.  18. 

•*  1  Win.  and  Mary,  ch.   5. 


•  See  the  conflrnmtorv  opinion  in  this  case  of  tlie  Attorney-Oeneral  *'f,?'a>' j^.  IS'8— 16  Opms.,  13. 
+  See  opinion  to  a  similar  effect  of  the  Attornev-Oeneral  of  June  Ki,  j^.^.  It'  Upms.,  4^. 
X  See  to  the  same  efTect  the  opinion  of  the  Attorney-General  referred  to  in  note    . 


4b0  MIL! TAUT  LAW. 

officer  and  soldiers  of  the  trains  of  artillery  in  1702,  but  the  personnel  of  the 
artillery  was  not  brought  under  the  permanent  operation  of  the  Mutiny  Act 
until  1T39.'  In  ITo-i  the  local  army  of  the  East  India  Company  was 
brought  under  the  Act,'  the  operation  of  which  was  extended  in  the  same 
vear  to  include  the  English  troops  and  the  local  forces  operating  with  them 
hi  North  America.'  The  provisions  of  the  Act  were  extended  to  include' the 
English  militia  when  in  actual  service  in  the  year  175G;*  and  its  operation 
was  extended  to  the  engineers  (sappers  and  miners)  and  to  artificers  of 
ordnance  in  1788."  The  Article  appears  in  its  present  form  as  Article  1, 
Section  19,  of  the  British  Code  of  1774,  as  Article  1,  Section  17,  of  the 
American  Articles  of  177G,  and  as  Xo.  97  of  the  Articles  of  180G. 

Military  Ofifenses  Not  Territorial. — It  is  a  general  principle,  confirmed 
by  the  comprehensive  terms  of  this  Article,  that  military  offenses  are  not 
territorial  in  character.  The  obligations  imposed  by  the  Article  upon  mili- 
tary persons  follow  them  wherever  they  may  go  in  the  j)erformance  of 
proper  military  duty.*  The  only  limitation  in  this  respect  is  that  imposed 
by  paragraphs  1002  to  1604  of  the  Navy  Regulations,  which  contain  the 
requirement  that  "no  Army  court-martial  shall  be  held  or  military  punish- 
ment inflicted  on  board  a  ship  of  the  Navy  in  commission." 

Article  65.  Officers  charged  ivitli  crime  shall  he  arrested  and  confined  in 
their  barracks,  quarters,  or  tents,  and  deprived  of  their  swords  hy  the  com- 
manding officer.  And  any  officer  who  leaves  his  confinement  before  he  is  set 
at  liberty  by  his  commanding  officer  shall  be  dismissed  from  the  service. 

The  Articles  of  War  of  Prince  Rupert  and  King  James  II.  nowhere 
recognize  the  status  of  arrest  as  a  form  of  restraint  in  the  case  of  a  commis- 
sioned officer,  although  both  codes  contain  express  provisions  in  respect  to 
the  confinement  of  enlisted  men.  If  the  practice  of  placing  officers  in  arrest, 
either  as  a  measure  of  restraint  or  with  a  view  to  their  trial,  existed  or  was 
recognized  during  the  last  half  of  the  seventeenth  century,  it  must  have 
rested  upon  the  custom  of  service,  or  upon  a  usage  dating  from  the  period 
of  chivalry.  That  the  principle  was  known  to  tlie  military  service  in  early 
times  is  evidenced  by  the  requirement  of  the  War  Ordinances  of  Henry  VIII. 

'  1  Anne,  ch.  20,  sec.  46.  See,  also,  13  Gen.  II.,  c.  10  nnd  12:  Geo.  II  .  eh,  12. 
Cited  in  I.  Clode,  ]SIil.  Forces,  p.  178.  Tlie  dislinctiou  between  tlie  artillery  and  tlie  other 
arms  of  the  service  continued  to  be  made  in  all  sets  of  Articles  of  War,  up  to  and 
including  tho.se  of  1806.  The  officers  and  enlisted  men  of  the  artillery  were  for  the  first 
time  placed  upon  precisely  the  same  footing  as  troops  of  other  armies  in  the  Articles  of 
1874. 

s  27  Geo.  II  ,  ch.  9. 

»  28  Geo.  II.,  ch.  4,  sec.  74. 

*  30  Geo   II.,  ch.  2T). 

'  Clode.  Mil.  Law.  60. 

'  So,  too,  an  officer  wlio  is  guilty  of  conduct  unbecoming  an  officer  and  gentleman, 
the  offense  having  been  ccHrunitted  without  the  tenitoriid  jurisdiction  of  the  United 
States,  is  liable,  on  his  retuiii.  to  trial  uncb'r  the  61st  Article  See  Digest  of  Opinions  of 
the  Judge- Advocate  General,  331,  par.  20  ;  see,  also,  the  chapter  entitled  The  Juris- 
diction OF  COUKTS-MARTIAL. 


I 


THE  ARTICLES   OF  WAR.  481 

tlmt  "every  man  shall  obey  the  King's  Sargantes,  *  *  *  and  all  other 
otticers  having  authoritie  to  arrest,  assigned  by  the  King's  Majestie,  or  the 
Marsliall,  or  by  anie  other  oflieers  of  authoritie.  And  that  no  man  presume 
to  break  their  arrests,  npon  payne  of  imprisonment,  and  his  bodit  to  be  at 
the  King's  ]>leasure,  his  Grace's  lieutenant  or  lieutenants;  and  if  the  prisoner 
disobeyinge  tlie  sayd  arrest  nuiyme  anie  of  the  said  oflicers,  tlien  he  so 
offending,  to  suffer  the  payne  of  death,  and  if  hee  grievously  wound  or  hurt 
any  of  them,  then  to  be  imprisoned  and  punished  at  the  King's  pleasure."  ' 

The  Article  ai)pears  substantially  in  its  present  form  as  Article  17, 
Section  15,  of  tiie  British  Code  of  1774,  which  provides  that  "  to  the  end 
that  Offenders  may  be  brought  to  Justice,  We  hereby  direct  tiiat,  wlienever 
any  Officer  or  .Souldier  shall  commit  a  Crime  deserving  punishment,  he 
shall,  by  his  commanding  Officer,  if  an  Officer,  be  put  in  Arrest;  if  a  Non- 
commissioned Officer  or  Souldier,  be  imprisoned  till  he  shall  be  either  tried 
by  a  Court-Martial,  or  shall  be  lawfully  discharged  by  a  projoer  Authority." 
This  requirement  was  repeated  as  Article  15,  Section  14,  of  the  American 
Articles  of  177G. 

In  the  Articles  of  1806  the  clauses  relating  to  officers  and  enlisted  men 
were  separated;  that  in  relation  to  the  arrest  of  officers  being  embodied  aa 
No.  77,  and  that  respecting  the  confinement  of  enlisted  men  as  Xo.  78;  to 
the  former  was  added  the  provision  defining  the  offense  of  "  breach  of 
arrest"  and  assigning  the  penalty  of  dismissal  thereto  which  had  been 
embodied  in  Article  '22,  Section  15,  of  the  British  Code  of  1774  as  Article 
20,  Section  14,  of  the  American  Articles  of  177G,  and  as  Article  14  of  the 
Amendments  of  178G.  The  requirement  that  an  officer  placed  in  arrest 
"shall  be  deprived  of  his  sword  "  was  not  contained  in  the  British  Code 
from  which  the  American  Articles  were  taken,  and  appears  for  the  first  time 
as  Article  14  of  the  Resolution  of  Congress  of  May  31,  178G,  and  was 
embodied  as  the  last  clause  of  the  77tli  of  the  Articles  of  1806. 

The  term  "crime  "as  employed  in  this  as  in  the  following  Article  is 
used  in  a  general  sense,  referring  to  offenses  of  a  military  character,  as  well 
as  to  those  of  a  civil  character  which  are  cognizable  by  court-martial.  An 
offense  in  violation  of  this  Article  is  onl}'  committed  when  an  officer  con- 
fined ill  "  close  arrest  "  to  his  quarters  leaves  the  same  without  authority. 
A  breach  of  a  mere  formal  arrest,  or  of  any  arrest  not  accompanied  by  con- 
finement to  quarters,  would  be  an  offense  not  within  this  Article,  but  under 
Article  6-2, ' 

Arrests,  How  Executed. — An  officer  may  be  j)ut  in  arrest  l)y  a  verbal  or 
written  order  or  communication  from  an  authorized  superior  advising  him 

'  Samuel.  85. 

'  Dig  J.  A.  Gi'ii..  l'^.  par.  1.  See.  also,  for  a  discussion  of  tlie  subject  of  arrest, 
the  chanter  einitlc'l  Aukkst  and  Confine.ment.  Compare  Wallou  cs.  Gavin,  16 
Ad.  &  El.,  66.  68  ;  Simmons,  §  360  ;  I.  Wiiiihrop,  pp.  136-149. 


482  MILITARY  LAW. 

that  he  is  placed  in  arrest  or  will  consider  himself  in  arrest,  or  in  terms  to 
that  effect;  the  reason  for  the  arrest  need  not  be  specified.     At  the  same 
time  he  is  usually  required  to  surrender  his  sword,  though  this  formality 
mav  be  dispensed  with.     But  an  arrest,  though  an  almost  invariable,  is  not 
an  essential,  preliminary  to  a  military  trial;  to  give  the  court  jurisdiction  it 
is  not  necessary  that  the  accused  should  have  been  arrested;  it  is  sufficient 
if  he  voluntarily,  or  in  obedience  to  an  order  directing  him  to  do  so,  appears 
and  submits  himself  to  trial.     So  neither  the  fact  that  an  accused  has  not 
been  formally  arrested,  or  arrested  at  all,  nor  the  fact  that,  having  been  once 
arrested  and  released  from  arrest,  he  has  not  been  rearrested  before  trial, 
can  be  pleaded  in  bar  of  trial  or  constitute  any  ground  of  exception  to  the 
validity  of  the  proceedings  or  sentence.     An  officer  is  in  no  case  entitled  to 
demand  to  be  arrested.' 

By  "Whom  Imposed. — Except  in  the  class  of  cases  indicated  in  the  24th 
Article,  only  "commanding  officers"  can  place  commissioned  officers  in 
arrest.'  The  commanding  officer  thus  authorized  is  the  commander  of  the 
reo-iment,  company,  detachment,  post,  department,  etc.,  in  which  the  officer 
is  serving.  Where  a  company  is  included  in  a  post  command,  the  com- 
mander of  the  post,  rather  than  the  company  commander,  is  the  proper 
officer  to  make  the  arrest  of  a  subaltern  of  the  company.'  In  the  majority  of 
cases,  however,  arrests  are  originally  ordered  by  the  authority  by  whom  the 
court  has  been  or  is  to  be  convened." 

An  officer  is  not  privileged  from  arrest  by  virtue  of  being  at  the  time 
a  member  of  a  general  court-martial.  But  an  arrest  of  an  officer  while 
actuallv  engaged  upon  court-martial  duty  should  if  possible  be  avoided.' 

"A  medical  officer  charged  with  the  commission  of  an  offense  need  not 
be  placed  in  arrest  until  the  court-martial  for  his  trial  convenes,  if  the  service 
would  be  inconvenienced  thereby,  unless  the  charge  is  of  a  flagrant  char- 
acter. ' '  • 

>  Dio-  J  A  Gen.,  169,  par.  1.  "An  officer  arrested  will  repair  at  once  to  his  tent  or 
quarters  and  there  remain  until  more  extended  limits  have  been  grunted  by  the  com- 
mandinsr  officer,  on  written  application.  Close  continement  will  not  be  enforced  except 
in  casbsToi  a  serious  nature."     Par.  898,  A.  R.  1895.  _ 

'  •'  Comniandin"-  officers  only  have  power  to  place  officers  u)  arrest,  except  as  provided 
in  the  24th  Article^of  War.  An  arrest  may  be  ordered  by  the  commanding^ officer  ia 
person  or  through  his  staff  officer,  orally  or  in  writing."     Par.  897,  A.  R.  189o. 

3  Dijr.  J.  A.  Gen.,  170,  par.  2  ;  par.  897,  A.  R.  1895. 

4  Dig.  J.  A.  Gen.,  170,  par.  2. 

^  Ihid..  par.  6.  „.,,,,,..   i- 

«  Par  900,  Army  Reg-ulations  of  1895.  "Officers  will  not  be  placed  in  arrest  for 
lio-ht  offenses'.  For  the.se  the  censure  of  the  commanding  officer  will  generally  answer 
tlfe  purpose  of  discipline.  Whenever  a  commanding  officer  places  an  officer  in  arrest 
and  releases  him  without  preferring  charges,  he  will  make  a  written  report  of  his  action 
to  the  department  commander,  .stating  the  cause.  The  department  commander,  if  he 
thinks  the  occasion  requires,  will  call  on  the  officer  arrested  for  any  explanation  he  may 
desire  to  make  and  take  such  other  action  as  he  may  think  necessary,  forwardnig  the 
papers  to  the  Adjutant-General  of  the  Army  for  file  with  the  officer's  record  or  for  fur- 
ther action."     Far.  H9'3,  ibid.  .  . 

The  principle  of  the  common   law  by   which  a  witness  is  protected  from  arrest 


THE  AliriCLES  OF  WAR.  48 


Q 


The  Status  of  Arrest ;  Limits. — The  status  of  being  in  arrest  is  incon- 
sistent with  the  peforming  of  military  duty.  Placing  an  arrested  officer  or 
soldier  on  duty  terminates  his  arrest.  Releasing  a  soldier  from  arrest  and 
requiring  him  to  perform  military  duty,  after  his  trial  and  while  he  is  await- 
ing the  promulgation  of  his  sentence,  can  be  justified  only  by  an  extraor- 
dinary exigency  of  the  service.' 

It  is  clearly  to  be  inferred  from  paragraphs  897  and  898  of  the  Army 
Regulations  of  1895  that,  unless  other  limits  are  specially  assigned  him,  an 
officer  in  arrest  must  confine  himself  to  his  quarters.  It  is  generally  under- 
stood indeed  that  he  can  go  to  the  mess-house  or  other  place  of  necessary 
resort.  It  is  not  unusual,  however,  for  the  commander  to  state  in  the 
order  of  arrest  certain  limits  within  which  the  officer  is  to  be  restricted,  and, 
except  in  aggravated  cases,  these  are  ordinarily  the  limits  of  the  post  where 
he  is  stationed  or  held.  An  officer  or  soldier,  though  retained  in  close 
arrest,  should  be  permitted  to  receive  such  visits  from  his  counsel,  witnesses, 
etc.,  as  may  be  necessary  to  enable  him  to  prepare  his  defense.' 

An  officer  under  arrest  is  not  disqualified  to  prefer  charges.' 

The  imposition  of  an  arrest  affects  in  no  manner  the  right  of  an  officer 
or  soldier  to  receive  the  pay  and  allowances  of  his  rank.  Except  in  a  case 
of  a  deserter,*  no  legal  inliibition  exists  to  paying  a  soldier  while  in  arrest, 
either  before  trial  or  while  awaiting  sentence,  his  regular  pay  and  emolu- 
ments.'' 

Article  66.  Soldiers  charged  with  crimes  shall  be  confined  until  tried  ly 
court-martial  or  released  hy  proper  authority. 

This  appears  as  No.  78  of  the  Articles  of  1806,  as  Article  15,  Section 
14,  of  those  of  1776,  as  Article  15,  Section  14,  of  the  Resolution  of  Con- 
gress of  May  31,  1786,  and  as  Article  17,  Section  15,  of  the  British  Code  of 
1774.  The  clause  relating  to  the  confinement  of  enlisted  men  was  first  made 
a  separate  Article  of  War  in  the  Resolution  of  Congress  of  1786.  AVhile  the 
power  to  place  officers  in  arrest  is,  as  has  been  seen,  an  attribute  of  com- 
mand, and  is  in  general  restricted  in  its  exercise  to  the  commanding  officer, 
the  corresponding  jiower  to  confine  enlisted  men  is  one  which  may  be  exer- 
cised, in  a  proper  case,  by  any  commissioned  officer.  It  is  usually  exercised, 
however,  by  the  offender's  immediate  commander,  or  by  the  officer  under 
whose  orders  he  may  ha])pen  to  be  at  the  time  the  offense  is  committed. 


should  in  general  he  applied  to  military  rases.  If  it  ran  well  be  avoided,  an  arrest 
sliouhl  ceriainly  not  be  imposed  upon  an  otlicer  or  soldier  while  altendin<r  u  court-mar- 
tial as  a  witness.  But  such  an  arrest  would  constitute  an  irregularity  onTy,  and  would 
not  alTect  the  validity  of  the  proceedings  of  a  trial  to  which  the  party  thus" arrested  was 
subsequently  subjected.     Dig.  J.  A.  Gen.,  171,  par.  9. 

'  Dig.  J.  A.  Gen.,  170,  par.  4;  1  Greeuleaf,  §  316. 

'  Ibid.,  par.  3. 

'  Ibid..  171.  par  7. 

*  See  par.  129.  A.  R.  1895. 

'  Dig.  .T.  A.  Gen.,  171,  par.  8. 


4S4  MILITARY  LAW. 

The  confinement,  though  required  by  regulation  and  by  custom  of  service 
to  be  o-rdered  by  a  commissioned  officer,  may  be  executed  by  a  subordinate, 
or  by  any  duly  authorized  military  person,  as  by  a  non-commissioned  officer 
or  by  a  .-entinel.' 

The  word  "  crimes,"  as  used  in  this  Article,  is  construed  to  mean  serious 
military  oti'enses.  So  that  a  soldier  will  not  properly  be  confined  where 
not  charged  with  one  of  the  more  serious  military  offenses;  in  other  words, 
where  charsred  only  with  an  offense  of  a  minor  character.' 

Character  of  Restraint. — Soldiers  held  in  confinement,  while  they  may 
be  subjected  to  such  restraint  as  may  be  necessary  to  prevent  their  escaping 
or  committing  violence,  cannot  legally  be  subjected  to  any  punishment;  the 
imposition  of  punishment  upon  soldiers  while  thus  detained  has  been  on 
several  occasions  emphatically  denounced  by  department  commanders/ 

Confinement  of  Enlisted  Men.  How  Executed. — It  has  been  seen  that  the 
arrest  of  a  non-commissioned  officer  or  the  confinement  of  a  j^rivate  soldier 
may  be  ordered  by  any  commissioned  officer  of  the  Army.' 

Non-commissioned  officers  against  whom  charges  may  be  preferred  for 
trial  will  be  placed  in  arrest  in  their  barracks  or  quarters.  They  will  not 
be  confined  in  the  guard-house  in  company  with  privates,  except  in  aggra- 
vated cases  or  when  escape  is  feared." 

Soldiers  "against  whom  charges  may  be  preferred  for  trial  by  summary 
court  will  not  be  confined  in  the  guard-house,  but  will  be  placed  in  arrest  in 
quarters,  before  and  during  trial  and  while  awaiting  sentence,  except  when 
in  particular  cases  restraint  may  be  necessary."  ° 

Privates  against  whom  charges  may  be  preferred  for  trial  by  general 
court-martial  will  be  confined  in  the  guard-house  before  and  during  trial. 
While  awaiting  trial  and  sentence,  or  undergoing  sentence,  they  will,  if 
practicable,  be  kept  apart  from  privates  confined  for  minor  offenses  or  by 
sentence  of  an  inferior  court.' 

A  soldier  while  confined  in  arrest  should  not  be  fettered  or  ironed  except 

'  See  Article  65.  supra,  and  the  chapter  entitled  Arrest  and  Confinement. 

5  Di.ff.  J.  A.  Gen.,  79,  par.  2. 

*  Ibid.,  par.  1.  See,  for  example,  the  remarks  of  department  commanders  in  G.  O. 
23  Depiirtment  of  the  East,  1863;  do.  26,  Department  of  California,  1866;  do.  23,  De- 
partment of  the  Lakes,  1870;  do.  106,  Department  of  Dakota,  1871.  And  compare  the 
remarks  of  .Justice  Story  in  Steere  Vf<.  Field.  2  Mason.  516. 

■*  See  the  chapter  entitled  Arrest  and  Confinement,  supra.  Except  as  provided 
in  the  24tli  Article  of  War  or  when  restraint  is  necessary,  no  soldier  will  be  confined 
without  the  order  of  an  officer,  wlio  shall  previously  inquire  into  his  offense.  Confine- 
ment without  trial,  as  a  punishment  for  an  offense,  is  forbidden.  An  officer  authorizing 
the  arrest  or  confinement  of  a  soldier  will,  as  soon  as  praticable,  report  the  fact  to  his 
company  or  detachment  commander.     Pars.  90.1.  906,  A.  R.  1895. 

'  Paragraphs  904  and  936,  A.  R.  1895.     Enli.sted  men  in  arrest  in   barracks  or  quar- 
ters will  be  (le.signated  as  "in  arrest";  those  confined  in  the  guard-house  awaiting  trial 
or  result  of  trial  as  "in  confinement."     Manual  for  Courts  martial,  p.  6,  par.  1. 
.    «  Par.  936,  ibid. 

">  Par.  907,  Und. 


THE  ARTICLES  OF   WAR.  485 

where  such  extreme  means  are  necessary  to  restrain  him  from  violence,  or 
there  is  good  reason  to  believe  that  he  will  attempt  an  escape  and  he  cannot 
otherwise  be  securely  held.' 

Status  of  Confinement. — Non-commissioned  officers  in  arrest  will  not  be 
required  to  perform  any  duty  in  which  they  may  be  called  upon  to  exercise 
command.  Non-commisriioned  oflicers  in  confinement  will  not  be  sent  out  to 
work  with  prisoners  under  sentence.^ 

Enlisted  men  in  arrest  may,  in  the  discretion  of  the  commanding  officer, 
be  required  to  attend  parades,  inspections,  drills,  school,  or  other  military 
duties  and  to  assist  in  policing  in  and  around  their  barracks.  Privates  in 
confinement  awaiting  trial  will  not  be  sent  to  work  with  prisoners  undergoing 
sentence  if  it  can  be  avoided ;  but  may,  in  the  discretion  of  the  commanding 
officer,  be  required  to  attend  drills,  or  be  sent  to  work  during  the  usual 
working  hours  under  charge  of  a  special  sentinel.' 

The  work  which  nuiy  be  required  of  soldiers  in  arrest  is  determined  by 
paragraph  907,  Army  Regulations  of  1895. *  Under  the  regulation  as  thus 
established,  soldiers  in  confinement  awaiting  action  on  the  proceedings  of 
their  trials  are  assimilated  to  those  awaiting  trial,  and  both  classes  may,  at 
the  discretion  of  the  commanding  officer,  be  employed,  separately  from 
prisoners  undergoing  sentence,  upon  such  labor  as  is  habitually  required  of 
soldiers.  More  severe  or  other  labor  would  not  be  legal,  nor  would  labor 
with  a  police  party  consisting  in  whole  or  in  part  of  men  under  sentence 
however  slight  their  sentence  might  be.'  A  soldier  in  arrest  in  quarters  may 
be  required  to  do  cleaning  or  police  work  about  his  quarters  which  otherwise 
other  soldiers  would  have  to  do  for  him.' 

Abticle  67.  No  ])j-orosf-ma)-sJiaI,  or  officer  commanding  a  fjuard,  shall 
refuse  to  receive  or  keep  any  priso?ier  committed  to  his  charge  by  an  officer 
belonging  to  the  forces  of  the  United  States  ;  provided  the  officer  committing 
shall,  at  the  same  time,  deliver  an  account  in  writing,  signed  by  himself,  of 
the  crime  charged  against  the  prisoyier. 

The  71st  Article  of  the  Prince  Rupert  Code  contained  the  following 
requirement:  "  Ko  Provost-Marshal  shall  refuse  to  receive  or  keep  a  prisoner 
sent  to  his  charge  by  authority,  or  shall  dismiss  him  without  order,  upon 
pain  of  such  punishment  as  a  Court-Martial  shall  think  fit.  And  if  the 
offense  for  which  the  prisoner  was  apprehended  deserved  death,  the  Provost- 
Marshal  failing  to  receive  and  keep  him  as  aforesaid  shall  be  lyablo  to  the 
same  punishment."  This  was  repeated  as  Article  50  of  the  King  James 
Code  of  1686.     The  provision  appeared  in  its  present  form  as  Article    I'.', 


'  Dig   J.  A    Gen.,  171.  par.  10.     See,  also.  Manual  for  Courts-martial,  p.  70.  par.  8. 

»  Maniuil  for  Ctnirts-nitiriial,  p.  6.  par.  3. 

»  Par   907.  A   R    1895 

••  See.  also.  Circulars  3  Mtid  7,  H.  Q.  A..  1890 

s  See  Gen   Orders  44    Div.  of  the  Atlantic,  1889. 

*  Dig.  J.  A.  Gen.,  171.  pur.  11. 


486  MILITARY  LAW. 

Section  15,  of  the  British  Code  of  1774,  as  Article  17,  Section  14,  of  the 
American  Articles  of  1776,  as  Article  17,  Section  14,  of  the  Resolution  of 
Congress  of  1786,  and  as  No.  80  of  the  Articles  of  1806. 

The  requirement  that  the  order  of  arrest  should  be  in  writing  was  embodied 
in  the  Article  in  1742;  those  of  1748  required  that  the  offense  charged 
should  also  be  stated.'  It  is  the  duty  of  the  receiving  officer  to  satisfy  him- 
self that  the  prisoner  tendered  is  one  subject  to  military  law.  Beyond  this 
he  has  no  responsibility,  the  duty  and  responsibility  of  receiving  and  keeping 
the  prisoner  arising,  eo  instatite,  as  soon  as  he  is  presented.  His  obligation 
is  the  same  whether  the  offense  charged  be  civil  or  military.^ 

Akticle  68.  Every  office?-  to  whose  charge  a  prisoner  is  committed  shall^ 
within  twenty-four  hours  after  such  commitment,  or  as  soon  as  he  is  relieved 
from  his  guard,  report  in  writing  to  the  commanding  officer  the  name  of 
such  prisoner,  the  crime  charged  against  him,  and  the  name  of  the  officer 
committing  him;  and  if  he  fails  to  make  such  report,  he  shall  ie  punished 
as  a  court-martial  may  direct. 

Article  72  of  the  Prince  Rupert  Code  contained  the  folloAving  require- 
ment: "  If  any  person  be  committed  by  the  Provost-MarshaPs  own  authority, 
without  other  command,  he  shall  acquaint  the  General  or  other  chief  Com- 
mander with  the  cause  thereof  within  twenty-four  hours,  and  the  Provost- 
Marshal  shall  thereupon  dismiss  him,  unless  he  have  order  to  the  contrary." 
This  provision  is  repeated  as  Article  51  of  the  King  James  Code  of  1686, 
and  a  similar  provision  appears  in  the  Articles  of  1717.'  The  Article 
■  appeared  in  its  present  form  as  Article  21,  Section  15,  of  the  British  Code 
of  1774,  as  Article  19,  Section  14,  of  the  American  Articles  of  1776,  as 
Article  19,  Section  14,  of  the  Resolution  of  Congress  of  1786,  and  as  No.  82 
of  the  Articles  of  1806. 

The  Article  of  1774  required  the  report  to  be  made  to  the  Colonel  of 
the  regiment  to  which  the  offender  belonged  when  the  offense  related  to  a 
neglect  of  duty  in  his  own  corps.  The  other  prisoners,  not  being  regimental, 
were  known  as  "general  prisoners,"  and  the  report  respecting  them  was 
submitted  to  the  commander-in-chief.  The  use  of  the  term  "  general  pris- 
oners "  as  applied  to  this  class  of  prisoners  is  believed  to  have  originated  iu 
the  distinction  required  by  this  Article. 

Aeticle  69.  Any  officer  who  jjresufnes,  zvithout  proper  authority,  to 
release  any  prisoner  committed  to  his  charge,  or  suffers  any  prisoner  so  com- 
mitted to  escape,  shall  he  punished  as  a  court-martial  may  direct. 

I  Clode.  Mil.  Law,  99,  100.  _     ,. 

'  Ibid.,  100;  Wolton  rs.  Gavin,  16  Q.  B.  Rep..  70.  The  20th  of  the  English  Articles 
of  185.")  makes  it  optional  with  the  committing  officer  to  .state  the  charge  at  the  time  of 
commitment,  or  without  any  unnecessary  delay  thereafter.*  The  Army  Act  of  188^ 
contains  the  same  requirement.! 

='Arlicle44. 


*  Clode.  Mil.  Law,  100. 

+  Manual  of  Mil.  Law,  376.    See,  also,  the  chapter  entitled  Arrest  and  Cokfineii£>'T, 


rUE  AliTlCLEH   OF   WAR.  4S7 

This  appears  as  Article  20,  Section  15,  of  the  British  Code  of  1774,  as 
Article  18,  Section  14,  of  the  American  Articles  of  1770,  and  the  Resolution 
of  Congress  of  1780,  and  as  No.  81  of  the  Articles  of  1800.  Althougli  no 
specitic  intent  is  set  forth  in  the  Article,  in  order  to  constitute  the  offense 
of  suffering  a  prisoner  to  escape,  the  executive  order  prescribing  maximum 
punishments  assigns  ditTerent  limits  of  punishment  for  luiUfully  and  for 
iwjligenthj  allowing  an  escape,  as  separate  offenses.  A  charge  for  suffering 
an  escape,  under  this  Article,  should  therefore,  indicate  in  the  specification, 
whether  the  act  is  alleged  to  be  willful  or  negligent  only.'  In  the  British 
service  a  distinction  is  made  in  the  statute  between  an  offender  who  "  will- 
fully or  otherwise"  releases  a  prisoner,  or  who  "willfully  or  without 
reasonalde  cause  "  allows  a  prisoner  to  escape. 

Aeticle  70.  .Vo  officer  or  .soldier  j)ut  in  arrest  shall  be  continued  in  con- 
pnenienf  more  than  eight  days,  or  until  such  time  as  a  cuui't-martial  can  be 
assembled. 

The  40th  of  the  Articles  of  1717  fixed  the  duration  of  the  confinement 
of  an  officer  or  enlisted  man  prior  to  trial  at  "  five  days  at  farthest  ";  and 
this  period  was  extended  to  eight  days  in  the  Articles  of  1742,  at  which  it 
has  since  remained.  It  so  appears  in  Article  18,  Section  15,  of  the  British 
Code  of  1774,  as  Article  It),  Section  14,  of  the  American  Articles  of  1770, 
and  of  the  Resolution  of  ('nn2^ress  of  1780,  and  as  Xo.  70  of  the  Articles  of 
1800. 

The  latter  part  of  the  clause  evidently  allows  a  latitude  which  is  capable 
of  being  abused;  but  as  in  a  free  country  there  is  no  wrong  without  a 
remedy,  the  military  law  prescribes  a  mode  of  redress  for  all  oflRcers  and 
soldiers  who  conceive  themselves  injured  by  their  commanding  officers, 
which  must  always  be  sufficient  for  the  restraint  of  every  act  of  material 
injustice  or  oppression.' 

Detaining  soldiers  in  arrest  for  long  and  unreasonable  periods,  when  it  is 
practicable  to  bring  them  to  trial,  is  arbitrary  and  oppressive,  and  in  contra- 
vention both  of  the  letter  and  spirit  of  this  Article.  Whether  the  delay  in 
any  case  is  to  be  regarded  as  so  far  unreasonable  as  properly  to  subject  the 
commander  responsible  therefor  to  military  charges  or  to  a  civil  action  must 
depend  upon  the  circumstances  of  the  situation  and  the  exigencies  of  the 
service  at  the  time.' 

Article  71.  Whru  an  officer  is  pnt  in  arrest  for  the  purpose  of  trial, 
except  at  remote  military  posts  or  stations,  the  officer  by  whose  order  he  is 

'  Die.  .T.  A.  Gen.,  79. 

'  Tvtler.  106. 

»Dig  J.  A.  Gen.,  80.  Compare  Blake's  Case,  2  Maule  &  Sel..  4'28;  Bailey  vs. 
Warden,  4  ibid..  400. 

The  fact  that  a  .soldier  has  been  held  in  arrest  for  iiti  unrt'asonably  protracted  period 
before  trial,  or  while  awaiting  the  promiilg.'ition  (if  his  sentence,  i.s  a  good  ground  for  a 
mitigation  of  his  punishment.     Dig.  J.  A.  Gen.,  170,  par.  5. 


488  MILITARY  LAW. 

arrested  shall  see  that  a  copy  of  the  charges  on  wJiich  he  is  to  he  tried  is 
served  upon  him  within  eight  days  after  his  arrest,  and  that  he  is  brought  to 
trial  icithin  ten  days  thereafter,  unless  the  necessities  of  the  service  prevent 
such  trial ;  and  then  he  shall  he  brought  to  trial  within  thirty  days  after  the 
expiration  of  said  ten  days.  If  a  copy  of  the  charges  be  not  serced,  or  the 
arrested  officer  be  not  brought  to  trial,  as  herein  required,  the  arrest  shall 
cease.  But  officers  released  from  arrest  under  the  provisions  of  this  Article 
may  be  tried,  ivhenever  the  exigencies  of  the  service  shall  permit,  within 
tivelve  months  after  such  release  from  arrest. 

This  appears  for  the  first  time  in  statutory  form  as  tlie  Act  of  July  IG, 
186-2.'  Soon  after  the  battle  of  Ball's  Bluff,  Virginia,  in  October,  18(31, 
Brigadier-General  Charles  P.  Stone,  U.  S.  Volunteers,  the  commander  of  the 
district  in  which  the  engagement  took  place,  was  arrested  and  placed  in 
close  confinement  at  Fort  Lafayette  in  New  York  Harbor.  The  cause  of 
his  arrest  Avas  not  made  known  to  him  at  the  time  of  his  arrest,  or  subse- 
quently, and  no  military  charges  were  ever -preferred  against  him,  nor  was  a 
general  court-martial  convened  for  the  trial  of  his  case.  General  Stone 
endeavored,  but  without  success,  to  ascertain  the  cause  of  his  arrest,  and 
requested  in  vain  to  have  his  case  investigated  by  a  court-martial  or  a  court 
of  inquiry.  The  matter  was  finally  brought  to  the  attention  of  Congress, 
and,  as  a  result  of  legislative  inquiry,  the  Act  of  July  IG,  18G2,'  was  passed. 
This  enactment  was  had  apparently  with  a  view  to  secure  the  release  of 
General  Stone,  and  with  no  expressed  intention  on  the  part  of  the  legisla- 
ture to  add  to  the  existing  Articles  of  War  or  to  modify  existing  pro- 
cedure. The  provision  was  embodied,  however,  in  the  Articles  of  War  upon 
their  re-enactment  in  1874. 

The  term  "within  ten  days  thereafter "  has  been  held  to  mean  after  his 
arrest.'  It  has  also  been  held  a  sufficient  compliance  with  the  requirement 
as  to  the  service  of  charges  to  have  served  a  true  copy  of  the  existing  charges 
and  specifications,  though  the  list  of  witnesses  appended  to  the  original 
charges  was  omitted,  and  though  the  charges  themselves  were  not  in 
sufficient  legal  form,  and  were  intended  to  be  amended  and  redrawn.' 

The  fact  that  cases  of  officers  put  in  arrest  "at  remote  military  posts  or 
stations  "  are  excepted  from  the  application  of  the  Article  does  not  antliorize 
an  abuse  of  the  power  of  arrest  in  these  cases.  And  where,  in  such  a  case, 
an  arrest,  considering  the  facilities  of  communication  with  the  department 
headquarters  and  other  circumstances,  was  in  fact  unreasonably  protracted 
without  trial,  it  has  been  held  that  the  officer  was  entitled  to  be  released 
from  arrest  upon  a  proper  application  submitted  for  the  pur])ose.'' 

Though  an  officer  in  whose  case  the  provisions  of  this  Article  in  regard 
to  service  of  charges  and  trial  have  not  been  complied  with  is  entitled  to  be 

'  12  Statutes  at  Large,  595.  *  Dip.  .1.  A.  Gen.,  80,  par.  2 

» Ibid..  81,  par.  3.  *  Ihid.,  81,  par.  4. 


THE  ARTICLES  OF   WAR.  489 

released  from  arrest,  he  is  not  authorized  to  release  himself  therefrom.  If 
he  be  not  released  in  accordance  with  the  Article,  he  should  apj)ly  for  his 
discharge  from  arrest,  through  the  proper  channels,  to  the  authority  by 
whose  ortler  the  arrest  was  imposed,  or  other  i)ro})er  superior.' 

Article  72.  J  ny  general  officer  commanding  an  army,  a  territorial  divi- 
i^ion,  or  a  department,  or  colonel  commanding  a  separate  department,  may 
appoint  general  courts-martial  whenever  necessary .  But  when  any  such  com- 
mander is  the  accuser  or  j^roseciitor  of  any  officer  under  his  command,  the 
court  shall  be  appointed  by  the  President,  and  its  proceedings  and  sentence 
shall  be  sent  directly  to  the  Secretary  of  War,  by  whom  they  shall  be  laid 
before  the  President  for  his  approval  or  orders  in  the  case. 

The  early  English  Articles  are  specific  as  to  the  rank  and  otlier  qualifica- 
tions for  membership  of  general  courts-martial,  but  are  silent  as  to  the 
authority  by  whom  they  Avere  to  be  convened.  It  has  been  seen  that  the 
earl  marshal  constituted,  ex  officio,  the  marshal's  court,  and  that  court 
therefore  existed  so  long  as  the  oflice  of  earl  marshal  continued  to  be  held 
by  a  subject.  It  is  difhcult  and,  for  want  of  authentic  records,  practically 
impossible  to  determine  when  the  marshal's  court  ceased  to  exist  as  such 
and  gave  place  to  the  modern  court-martial.  The  transition  was  easy,  as 
other  members  are  known  to  have  been  associated  with  the  earl  marshal  in 
the  composition  of  the  court,  and  it  Avas  only  necessary  for  him  to  cease  to 
serve  as  a  member  in  order  to  give  to  that  tribunal  the  character  of  a  court- 
martial.  The  clause  relating  to  general  courts-martial  in  Prince  Rupert's 
Articles  of  War  refers  to  the  court  in  the  singular,  and  speaks  of  its  members 
as  "  those  who  compose  Our  General  Court- Martial."  '  As  the  first  standing 
army  in  England  constituted  the  personal  guard  of  the  sovereign,  and  was 
not  strong  in  point  of  numbers,  it  is  probable  that  all  cases  properly  triable 
by  such  a  body  were  in  fact  brought  before  a  single  general  court,  sitting 
in  TiOiulon  or  at  the  residence  of  the  sovereign. 

When  military  forces  were  embodied  either  for  foreign  service  or  to 
carrv  on  hostilities  on  the  Scotch  border,  commissions  were  issued  to  the 
commander-in-chief,  and  in  some  instances  to  several  persons,  by  title  of 
office,  conferring  power  to  convene  general  courts-martial  whenever,  in  their 
opinion,  the  interests  of  discipline  made  such  a  course  necessary.  These 
commissions  were  casual  or  occasional,  not  permanent  in  character,  and 
were  issued  from  time  to  time  whenever  active  operations  were  undertaken. 
They  expired  or  ceased  to  exist  with  the  termination  of  the  war  or  cam- 
paign for  which  they  were  issued.' 


'Die   J   A.  Gen.,  80.  par.  1. 

»  Arlirle  (iO. 

*  Such  aro  the  war  ordinancps  of  Richard  I.  (II.  Grose.  59),  those  of  Richard  11.  (II. 
ihid.,  ri9).  of  Ilenrv  V.  (II.  ihuL.  65).  of  Henry  VII.  ill.  ibid..  83).  of  Henry  VIII.  ill. 
'J)id..  8r)>,  those  of  the  Eail  ofNorthiimberliind.  1640  (II.  ihid.,  106),  of  the  Earl  of  Essex, 
1643(11.  ibid.,  107). 


490  MILITARY  LAW, 

The  first  Mutiny  Act  embodied  the  existing  usage  in  statutory  form  and 
authorized  the  sovereign  and  the  general  coninianding-in-chief  to  grant 
commissions  "  to  any  lieutenants-general,  or  other  officers  not  under  the 
degree  of  colonels,  from  time  to  time  to  assemble  courts-martial  for  punish- 
ing such  offenses  as  aforesaid."  '  As  the  offenses  thus  made  punishable  were 
desertion  and  mutiny,  it  is  plain  that  the  courts-martial  so  authorized  were 
of  the  grade  now  known  as  general  courts.  From  the  date  of  the  first 
Mutiny  Act  until  1TT6,  when  the  American  Articles  were  adopted,  the 
annual  Mutiny  Acts  contained  provisions  similar  in  effect  to  that  above 
cited.  General  courts-martial  were  convened  beyond  the  seas  by  the 
generals  commanding-in-chief,  by  whom,  also,  their  sentences  were  approved 
and  carried  into  effect. 

When  the  first  American  code  was  enacted  in  1770'  the  British  Articles 
of  1774  were  made  the  basis  of  the  enactment,  l)ut  the  Mutiny  Act,  as  such, 
was  not  enacted  as  a  separate  instrument,  nor  were  all  of  its  provisions 
embodied  in  the  Articles  so  adopted.  The  American  Articles  of  177G  there- 
fore departed  from  the  English  practice  in  this  regard,  and  contained  no 
provision  conferring  authority  upon  any  military  officer  to  convene  general 
courts-martial,  althougli  such  courts  were  convened  in  })ractice  by  the 
general  commanding  the  army.  By  the  Resolution  of  Congress  of  May  21, 
178f).'  Section  14  of  the  Articles  of  177G,  relating  to  military  tribunals,  was 
repealed  and  replaced  by  new  Articles  which  conferred  power  to  convene 
general  courts-martial  upon  "the  general  or  other  officer  commanding  the 
troops."  The  corresponding  Article  of  the  code  of  1806*  conferred  this 
power  upon  "anv  general  officer  commanding  an  army  or  colonel  command- 
ing a  separate  department,"  and  authorized  such  courts  to  be  convened 
"  whenever  necessary."  To  this  was  added  in  1830  the  requirement  that 
"  when  any  such  commander  is  the  accuser  or  prosecutor  of  any  officer 
under  his  command  the  court  shall  be  appointed  by  the  President,  and  its 
proceedings  and  sentence  shall  be  sent  directly  to  the  Secretary  of  War,  by 
whom  they  shall  be  laid  before  the  President,  for  his  approval  or  orders  in 
the  case."  ' 

The  provision  of  this  Article  which  conferred  power  to  convene  general 
courts-martial  upon  "colonels  commanding  separate  departments,"  which 
was  omitted  from  the  revision  of  1874,  was  restored  by  the  Act  of  July  5, 


'  I.  Wm.  and  Mary,  ch.  5. 

'  Resolution   of  Congress,    September  20,    1776,  2  Journals  of  Congress,  343.     The 
Articles  of  1775  contained  a  similar  requirement.* 
'  11  Journals  of  Congress,  107. 

*  Article  6.").  Tliis  inodification  was  suggested  by  Alexander  Hamilton;  see  note— to 
the  History  of  the  Artxles  of  War,  supra.  This  Article  appears  in  the  code  of  1874 
aa  Articles" 72,  105.  and  106. 

*  Act  of  May  29,  1830  (4  Stututes  at  Large,  417). 


*  Resolution  of  June  30,  1775,  1  Journals  of  Congress,  ViO. 


TUE  AJiTICLK'i   OF    WAU.  491 

188i.'  Prior  to  tliis  anieiidmeut  a  colonel  coninianding  a  department  was 
not  authorized,  as  sucli,  to  convene  a  general  court;  otherwise,  however,  of 
a  colonel  assigned  by  tiie  President  to  the  command  of  a  department  accord- 
ing to  his  brevet  rank  of  brigadier  or  major-general.' 

The  Convening  Authority.' — This  Article  specifies  by  what  military 
otlicers  a  general  court-martial  may  be  constituted.  The  President  of  the 
United  States  has  the  power  to  order  such  a  court,  as  the  constitutional 
commander-in-chief  of  the  Army,  irrespective  of  this  Article  or  other 
statute.'  • 

This  Article,  in  empowering  certain  commanders  to  constitute  the 
superior  courts-martial,  makes  them  the  judges,  in  general,  of  the  expediency 
of  ordering  such  courts  in  particular  instances."  So  where  a  commander 
empowered  by  this  Article  to  convene  a  general  court-martial  declines,  in  the 
exercise  of  his  discretion,  to  approve  charges  submitted  to  him  by  an  inferior 
and  to  order  a  court  thereon,  his  decision  should,  in  general,  be  regarded  as 
tinal."  Except  where  specially  authorized  to  do  so  by  law  or  regulation,  an 
officer  or  soldier  cannot  demand  a  court-martial  in  his  own  case. 

Accuser  or  Prosecutor. — The  provision  of  this  Article  and  of  Article  73, 
that  when  the  convening  commander  is  "  accuser  or  prosecutor"  the  court 
shall  be  convened  by  the  President  or  "next  higher  commander,"  being 
expressly  restricted  to  general  courts,  has  of  course  no  application  to  regi- 
mental or  garrison  courts.'  The  same  principle,  however,  will  properly  be 
applied  to  proceedings  before  these  courts,  if  it  can  be  done  without  serious 
embarrassment  to  tiie  service.' 

The  objection  that  the  convening  commander  was  the  "accuser"  or 
"  prosecutor"  of  the  accused,  being  one  going  to  the  legal  constitution  of 
the  court,  may  be  raised  before  the  court  at  any  stage  of  its  proceedings. 
Or  it  may  be  taken  to  the  reviewing  officer  with  a  view  to  his  disapproving 
the  proceedings,  or  may  be  made  to  the  President,  after  the  approval  and 
execution  of  the  sentence,  with  a  view  to  having  the  same  declared  invalid, 
or  to  the  obtaining  of  other  appropriate  relief.  Regularly,  however,  the 
objection,  if  known  or  believed  to  exist,  should  be  taken  at  or  before  the 
arraignment.  If  the  objection  is  not  admitted  by  the  prosecution  to  exist, 
the  accused  is  entitled  to  prove  it  like  any  other  issue.* 

'  23  Statutes  at  Lnrsre,  121. 

•  Dig.  J.  A   Gen..  82.  par.  4, 

'  See  tlie  chapter  cntitlett  CoNSTiTCTioN  of  Courts-martial. 

*  Ibid.,  81,  par.  1;  Swaim  vs.  U.  S.,  28  Ct.  Cls.,  173;  ibid.,  165  U.  S.,  553. 
'  Jbid.,  par.  2. 

'  Ibid.,  par.  3. 

'  But  see  the  title  "  The  Summary  Court  "  in  the  chapter  entitled  Thk  Inferior 
Courts-martial  A  general  court-martial,  convened  by  the  division  comniaiuler  (a  ma- 
jor-general) duly  acting  as  department  commander  in  the  absence  of  the  regular  depart- 
ment commander,  is  leeally  convened  by  a  general  officer  commanding  a  department  ia 
the  sense  of  this  Article.     Ibid..  84,  par.  10. 

^  Dig.  J.  A.  Gen..  84.  par.  9. 

Ubid.,  par.  8. 


492  MILITARY  LAW. 

The  mere  fact  that  a  general  court-martial  is  convened  by  a  department 
commander  does  not  make  such  commander  an  "accuser  or  prosecutor  "  in 
the  sense  of  this  Article.'  A  department  commander  is  not  an  "accuser  or 
prosecutor"  when,  upon  information  of  misconduct  duly  laid  before  him, 
he  orders  the  acting  judge-advocate  of  the  department  or  the  colonel  com- 
manding the  regiment  to  take  steps  to  bring  the  offender  to  trial,  this  being 
a  part  of  the  due  and  regular  suj^ervision  of  his  command.* 

Ahticle  73.  In  time  ofivar  the  commander  of  a  division,  or  of  a  separate 
brigade  of  iroojjs,  shall  be  C07npete?it  to  appoint  a  general  court-martial.  But 
when  sticJi  commander  is  the  accuser  or  prosecutor  of  any  person  under  his 
command,  the  court  shall  be  appointed  by  the  next  higher  commander. 

The  power  to  convene  general  courts-martial  conferred  uj^on  the  com- 
manders of  military  departments  and  generals  commanding  armies  by  the 
Articles  of  ISOG  was  found  adequate  to  the  disciplinary  needs  of  the  forces 
embodied  during  the  "War  of  1812,  the  War  with  Mexico,  and  the  several 
Indian  wars,  some  of  them  of  considerable  magnitude,  which  occurred 
between  the  years  1800  and  1860.  Such  was  not  the  case,  however,  with 
the  armies  called  forth  at  the  outbreak  of  the  War  of  the  Rebellion  in  1861. 
The  power  to  convene  general  courts-martial  was  therefore,  by  an  enactment 
of  December  24,  1861,  '  extended  to  the  commanders  of  divisions,  the 
largest  unit  of  organization  then  existing  in  the  Armies  of  the  United 
States,  and  which  had  already  come  to  be  regarded  as  the  unit  for  certain 
tactical  and  administrative  purposes.  To  meet  the  case  of  brigades  not 
attached  to  or  forming  an  integral  part  of  any  division,  the  power  to 
appoint  such  courts  was,  by  the  same  enactment,  extended  to  the  com- 
manders of  separate  brigades. 

Divisions;  Separate  Brigades. — According  to  the  general  definition  given 
in  the  Revised  Statutes,"  a  division  is  an  organized  command  consisting  of 
at  least  two  brigades,  and  a  brigade  an  organized  command  consisting  of  at 
least  two  regiments  of  infantry  or  cavalry,^  To  constitute  a  command  a 
"  separate  brigade  "  in  the  sense  of  this  Article,  it  must  not  exist  as  a  com- 
ponent part  of  a  division ;  to  authorize  its  commander  to  convene  a  general 
court-martial  it  must  be  detached  from  or  disconnected  with  any  division 
and  be  operating  as  a  distinct  command." 

1  IGOjnn.   Art.. Gen.,  lOSi. 

5  Dig.  J.  A.  Gen.,  84,  par.  11. 

s  Act  of  December  24,  1861  (12  Stat,  at  Large.  830). 

■•  Section  1114,  Rev.  Stat.,  Act  of  March  3,  1799  d  Stat,  at  Large,  749). 

*Dig.  J.  A.  Gen.,  85,  par.  1. 

*  Ibid  Thus  where  it  appeared  from  the  record  of  a  trial  that  the  court  was  con- 
vened by  a  colonel  commanding  tlie  "  2d  Biigade.  3d  Division,  14th  Army  Corps."  held 
that  it  -was  (juitc  clear  that  .sucli  colonel  did  not  command  a  ' '  separate  brigade,"  and  M-as 
tiierefore  not  authorized  to  order  a  general  court-martial.*     Ibid. 

*  Under  G.  O.  251,  A.  G.  O.  of  1864,  which  was  applied  mainly  to  the  commands  designated  in  the 
late  war  as  "districts,"  it  was  held  by  tiie  Jndpe-A<lvocate  General  as  follows:  That  the  fact  that  a 
district  command  was  composed  not  of  regiments  but  of  detachments  merely  (.which,  however  in  tho 


THE  ARTICLES   OF    WAR.  493 

On  August  31,  1804,  a  general  order  was  issued  from  the  "War  Depart- 
ment which  directed  as  follows:  "  Where  a  post  or  district  command  is  com- 
j)Osed  of  mixed  troops,  equivalent  to  a  brigade,  the  commanding  officer  of 
the  department  or  Army  will  designate  it  in  orders  as  '  a  separate  brigade,' 
and  a  copy  of  such  order  will  accompany  the  jjroceedings  of  any  general 
court  -  martial  convened  by  such  brigade  commander.  Without  such 
authority,  commanders  of  posts  and  districts  having  no  brigade  organization 
will  not  convene  general  courts-martial."  ' 

Article  74.  Officers  who  may  apjjoinl  a  court-martial  shall  be  conqjetent 
to  appoint  a  Judge-advocate  for  the  same.* 

Whenever  a  court-martial  shall  sit  in  closed  session  the  judge-advocate 
shall  tdthdraw,  and  when  his  legal  advice  or  his  assistance  in  referring  to 
recorded  evidence  is  required  it  shall  ie  obtained  in  open  court.* 

Sectioji  21  of  the  Act  of  March  IG,  1802,*  provided  that  "  whenever  a 
general  court-martial  shall  be  ordered  the  President  of  the  United  States 
may  appoint  a  fit  person  to  act  as  judge-advocate,"  and  *  *  *  "incases 
where  the  President  shall  not  have  made  such  appointment  the  brigadier- 
general  (commanding  the  army)  or  the  president  of  the  court  may  make  the 
same."  This  clause  was  not  repeated  in,  or  in  terms  repealed  by,  the 
Articles  of  1806,  but,  taken  in  connection  with  Article  G9  of  that  enactment, 
was  interpreted  as  conferring  upon  the  authority  competent  to  convene  a 


'  Dig.  J.  A.  Gen..  85,  par.  3.  Prior  to  Aug.  31,  1864  the  date  of  the  general  order 
above  specified,  it  had  been  held  tluit,  wliere  a  coininand  not  attached  to  a  division,  but 
occupying  a  sepaiate  i)ost  or  district,  or  operating  separalelj'  in  the  tield,  was  made  up  of 
regimeut.s  or  i)ails  of  regiments  suliicient  to  compose  a  brigade,  and  such  as  were  com- 
monly or  nught  ])roperly  be  orgainzed  into  a  brigade  command,  the  same  might  in 
general  be  viewed  as  constituting  a  "separate  brigade  "  in  tlie  sense  of  this  Article,  i.e., 
so  far  as  lo  empower  its  commander  to  convene  a  general  courtinarlial.  But  where  a 
certain  commanil  consisted  of  but  one  regiment  of  inlanlry  with  liiiee  batteries  ol'  artil- 
ler}',  held  lliat  it  could  scarcely  be  regarded  as  a  separate  brigade  within  the  meaning  of 
the  statute.     Jbid  ,  par.  2. 

^  See  the  chapter  entitled  Tiik  Composition  op  Courts-martial. 

3  Sec.  2,  Act  of  July  27,  1892  (27  Stat,  at  Large,   278). 

*  2  Statutes  at  Large,  132. 


number  of  tlie  troops,  were  eqrial  to  or  exceeded  two  reg^inients^  did  not  preolnde  its  heinp  designated 
as  a  "separate  l)rit;a(le.'"  and  lliat  when  so  desitrnjuej  its  comniatuler  had  the  same  authoritv  to 
convene  general  oointsniartial  as  lie  would  liave  if  the  coniniaiid  liad  the  regular  statutory  brigade 
organization;  tliat  tliougli  a  district  conunaud  eniliraeed  a  foive  considerably  givater  than  that  of  a 
brigade  as  commonly  constituted,  yet  if  not  designated  by  the  jiroper  authority  as  a  "separate 
brigade,"  its  commander  would  be  witliout  authority  to  convene  general  coui  ts-marlial.  uidess  indeed 
his  couunan<l  constituted  a  separate  "  army  "  in  the  sense  of  the  65th  (now  7','d)  .VriiclH  ;  that  it  was  not 
absohiteiy  necessary,  to  give  validity  to  the  proceedings  or  sentence  of  a  sreneral  ci'iu  :-niarlial  con- 
vened t)y  the  commander  of  a  separate  brigjirle.  that  the  command  should  be  desciilied  as  n  separate 
brigade  in  the  caption  or  superscription  of  the  order  convening  tlie  court  and  iirefi.xeil  \i>  tlie  record, 
or  even  that  a  copy  of  the  order  designating  the  command  as  a  separate  britrade  should  ncconipany 
tliii  proceedings.  As  to  the  latter  feature,  the  order  of  1864  is  viewed  as  directory  merely  .\nd  though 
no"  to  accompany  the  record  with  a  copy  of  the  order  tlnis  constituting  the  command  would  be  a 
serious  irregularity,  as  would  be  also,  though  a  less  serious  one,  the  omission  of  the  proper  formal  de- 
scription of  the  command  from  the  convening  order,  yet  if  the  command  had  actually  been  duly  desig- 
nateii.  and  in  firt  was.  a  separate  brigade,  and  tliis  fact  existed  of  record  and  could  be  verified 
from  tlie  official  records  of  the  department  or  .■\rmv.  the  omission  of  either  of  these  particulars.  thoug)i 
a  culpable  and  embarrassing  neglect  on  the  part  of  ttie  court  or  judge-advocate,  would  not  perse  invali- 
date th''  proceedings  or  sentence.     Dig.  J.  .\.  Oeii.   S.*).  par.  8. 

Hrlii  (.Tanuary.  IStiRl  that  until  the  sintiif:  hi'Iti  h.-id  been  formally  declared  to  be  terminated  by  the 
President  or  Congress,  sucli  status  must  t)e  held  to  be  subsisting;  and  that,  till  such  declaration,  the 
authoritv  vested  by  the  Act  of  Pec.  V.M,  1S61.  (now  Art.  7.3,1  in  comiiianders  of  divisions  and  separate  bri- 
gades  might  lawfully  continue  to  be  exercised.    Ibid.,  86,  par.  4. 


494:  MILITARY  LAW. 

general  court-martial  the  power  to  appoint  a  judge -advocate  for  the  same. 
This  clause  first  appeared  in  statutory  form  as  Xo.  73  of  the  Articles  of  1874. 

Article  75.  General  courts-martial  may  consist  of  any  number  of  officers 
from  Jive  to  thirteen,  inclusive;  but  they  shall  not  consist  of  less  than  thir- 
teen when  that  number  can  be  convened  without  manifest  injury  to  the  ser- 
vice. 

The  requirement  of  tliis  Article  in  respect  to  the  number  of  members 
composing  a  general  court-martial  seems  to  have  been  derived,  proximately 
at  least,  from  the  "  Articles  and  Military  Lawes  "  of  Gustavus  Adolphus. 
The  140th  and  141st  Articles  of  that  code  provide  that  regimental  courts- 
martial  shall  be  composed  of  such  number  of  officers  that  "  together  with 
the  President  they  may  be  to  the  number  of  thirteeue  at  the  leaste. "  The 
*'  Highest  Marshall  Court  "  provided  for  by  that  code,  corresponding  to  the 
modern  general  court-martial,  must  have  been  composed  of  more  than  thir- 
teen members,  since  five  general  officers  sat  as  members  by  title  of  office, 
together  with  all  the  colonels,  "  and  in  their  absence  their  lieutenant- 
colonels,"  and  the  142d  Article  provided  that  "these  shall  sit  together  when 
there  is  any  matter  of  great  importance  in  controversie. " 

Tlie  requirement  that  general  courts-martial  should  be  composed  of  thir- 
teen members,  "  whereof  none  were  to  be  under  the  degree  of  captains," 
appeared  as  a  clause  of  the  first  Mutiny  Act,  and  has  formed  a  part  of  all 
subsequent  enactments  of  a  similar  nature.  The  clause  permitting  a  less 
number  to  be  convened,  when  that  number  cannot  be  convened  "  without 
manifest  injury  to  the  service,"  was  added  to  the  American  Articles  by  the 
Kesolution  of  Congress  of  May  31,  178G.' 

Eligibility  for  Membership.' — Under  this  Article  all  officers  of  the  active 
list  of  the  Army  are  eligible  to  be  detailed  as  members  of  general  courts- 
martial.  Chaplains,  however,  are  at  present  not  so  detailed  in  practice. 
Retired  officers,  in  view  of  the  prohibitory  provisions  of  the  Revised 
Statutes,'  cannot  legally  be  assigned  to  court-martial  duty." 

But  only  officers  can  be  so  detailed ;  courts-martial  composed  in  whole  or 
in  part  of  enlisted  men  are  unknown  to  our  law.'  Thougli  any  officer  may 
legally  be  detailed,  it  is  desirable  that  no  officer  should  be  selected  who,  from 
having  preferred  the  charges  or  other  known  reason,  may  be  presumed  to  be 
biased  or  interested  in  the  case.' 

It  is  not  essential  to  the  validity  of  the  proceedings  that  the  order  con- 
vening a  general  court-martial  of  less  than  thirteen  members  should  state 

9 

'  11  Journuls  of  Congress,  107. 

'  See  the  chapter  entitled  Composition  of  Courts-martial. 

'  Sections  1259  and  1260,  Revised  Statutes. 

*  Dig.  J.  A.  Gen.,  87,  par.  1. 

*  Ibid.,  par.  2.     So  an  "  acting  assistant  surgeon,"  being  a  civilian,  is  not  qualified  to 
sit  on  a  court-martial.     Ibid. 

*  Jbid.,  par.  1. 


THE  ARTICLES  OF   WAR.  495 

that  "  no  other  officers"  (or  **  no  greater  number")  "than  those  named 
can  be  assembled  without  manifest  injury  to  tlie  service."  Attorney- 
General  Wirt '  did  not  hold  such  a  statement  to  be  essential,  but  simply 
expressed  the  opinion  that  the  President,  before  confirming  a  certain  death- 
sentence  adjudged  by  a  court  of  less  than  thirteen  members,  would  properly 
satisfy  himself  that  a  court  of  the  full  number  could  not  have  been  convened 
without  prejudice  to  the  service.  It  was  held  at  an  early  period  by  the 
United  States  Supreme  Court  that  it  was  for  the  convening  authority  to 
determine  as  to  what  number  of  officers  could  be  detailed  without  manifest 
injury  to  the  service,  and  that  his  decision  on  the  subject  would  be  conclu- 
sive.' 

While  a  less  number  of  members  than  five  catinot  be  organized  as  a  court 
or  proceed  with  a  trial,  tliey  may  perform  such  acts  as  are  preliminary  to  the 
organization  and  action  of  the  court.  Less  than  five  members  may  adjourn 
from  day  to  day;  and  where  five  are  present  and  one  of  them  is  challenged 
the  remaining  four  may  determine  upon  the  sufficiency  of  the  objection." 

"Where,  in  the  course  of  a  trial,  the  number  of  members  of  a  general 
court-martial  is  reduced  by  reason  of  absence,  challenge,  or  the  relieving  of 
members,  the  court  may  legally  proceed  with  its  business  so  long  as  five 
members,  the  minimum  quorum,  remain;  it  is  otherwise,  however,  where 
the  number  is  thus  reduced  below  five.' 

Article  76.  When  the  requisite  number  of  officers  to  form  a  general 
court-martial  is  not  present  in  any  post  or  detachment,  the  coinmandiyig 
officer  shall,  in  cases  which  require  the  cognizance  of  such  a  court,  report  to 
the  commanding  officer  of  the  department,  who  shall  thereupon  order  a  court 
to  he  assembled  at  the  nearest  post  or  department  at  ivhich  there  may  be  such 
a  requisite  number  of  officers,  and  shall  order  the  party  accused,  with  necessary 
witnesses,  to  be  transported  to  the  place  where  the  said  cotirt  shall  be 
assembled. 

This  provision  appeared  for  the  first  time  in  statutory  form  as  Section  23 
of  the  Resolution  of  Congress  of  May  31,  178G,  and  was  embodied  without 
change  as  Article  80  in  the  revision  of  1806. 

Article  77.  Officers  of  the  Regular  Army  shall  not  be  competeyit  to  sit  on 
courts-martial  to  try  the  officers  or  soldiers  of  other  forces,  except  as  provided 
in  Article  78. 

>  1  Opin.  Alt. -Gen..  296. 

'  Dii^.  J.  A.  Gen.,  88,  par.  8;     Martin  vs.  Mott,  12  Wheaton,  34-37  (1827). 

3  Ibid.,  87,  par.  4. 

*  Ibid.,  par.  3.  Where  a  court,  though  reduced  by  the  absence  of  members,  opera- 
tion of  cliallenges,  etc.,  to  below  five  members,  yet  proceeds  with  and  concludes  the 
trial,  its  further  proceedings,  including  its  tinding  and  sentence  (if  any),  are  unauthor- 
ized and  inoperative.     Ibid.,  88,  par.  6. 

A  court  reduced  to  four  members,  and  thereupon  adjourning  for  an  indefinite  period, 
does  not  dissolve  itself.  In  adjourning  it  should  report  the  facts  to  the  convening 
authority  and  await  his  orders.  He  may  at  any  time  complete  it  by  the  addition  of  * 
new  member  or  members  and  order  it  to  reassemble  for  business.     Ibid.,  par.  5. 


496  MILITARY  LAW. 

This  requirement  does  not  appear  in  the  British  Code  of  1774  from  which 
our  Articles  were  immediately  derived.  Article  1,  Section  17,  of  the 
American  Articles,  howe^'er,  contains  the  requirement  that  "  the  officers  and 
soldiers  of  any  troops,  whether  minute-men,  militia,  or  others,  being 
mustered  and  in  Continental  pay,  shall,  at  all  times  and  in  all  places,  when 
joined  or  acting  in  conjunction  with  the  regular  forces  of  the  United  States, 
be  governed  by  these  rules  or  Articles  of  War,  and  shall  be  subject  to  be  tried 
bv  courts-martial  in  like  manner  with  the  officers  and  soldiers  in  the  regular 
forces,  save  only  that  such  courts-martial  shall  be  composed  entirely  of 
militia  v^fficers  of  the  same  provincial  corps  with  the  offender."  The  final 
clause  of  this  Article  also  provided  that  "  such  militia  and  minute-men  as 
are  now  in  service,  and  have,  by  particular  contract  with  the  respective 
States,  engaged  to  be  governed  by  particular  regulations  while  in  Continental 
service,  shall  not  be  subject  to  the  above  Articles  of  AYar." 

The  A  3t  of  May  2,  170-2,'  contained  the  more  specific  requirement  that 
"  courts-martial  for  the  trial  of  militia  shall  be  composed  of  militia  officers 
onlv,"  'V'hich  was  embodied  as  the  last  clause  of  the  97th  of  the  Articles  of 

1806.' 

Although  officers  and  soldiers  of  volunteers,  not  being  militia,  are  as  much 
a  part  of  the  Army  of  the  United  States  as  are  regular  officers,  yet,  in  view 
of  the  terms  of  this  Article,  an  officer  of  the  regular  army,  so  called,  would 
lot  be  eligible  for  detail  as  a  member  of  a  court-martial  convened  for  the 
trial  of  volunteer  officers  or  soldiers,  nor,  when  duly  detailed  as  a  member  of 
a  court-martial,  would  he  be  competent  to  take  part  in  the  trial  of  a  volun- 
teer by  such  court.' 

Article  78.  Officer.'i  of  the  Marine  Corps,  detaclml  for  service  zvith  the 
Ann//  bii  order  of  the  President^  may  he  associated  with  officers  of  the  Regular 
Army  on  court!<-martial  for  the  trial  of  offenders  helongi^ig  to  the  Regular 
Army,  or  to  forces  of  the  Marine  Corps  so  detached ;  and  in  such  cases  the 
orders  of  the  senior  officer  of  either  corps,  who  may  be  present  and  duly 
authorized  shall  be  obeyed. 

The  Marine  Corps  was  created  by  the  Act  of  July  11,  1798.'  It  was 
augmented  by  the  Acts  of  March  3,  1809,'  and  April  IG,  1814.'  It  was 
reorganized  by  the  Acts  of  March  3,  1817,'  and  June  30,  1834;'  this  Article 


'  Sec.  6.  Act  of  May  2,  1792  (1  Stat,  at  Large,  222). 

2  This  rpciuirement  was  also  repeated  as  Section  6  of  the  Act  of  February  28,   1795, 
(1  i/)id.,  424,)  Section  1,  Act  of  April  8,  1814,  (3  ibid.,   134,)  and  July  29,  1861  (12  ibid., 

282.) 

»  See  tlie  chapters  entitled  respectively  The  Composition  of  Courts-martial  and 

Tim  Constitution  of  Courts  martial. 

•  1  Statutes  at  Large,  394. 

•  2  ibid. ,  544. 

•  3  ihid.,  124. 
'  3  ibid.,  276. 
»4  ibid  ,  712. 


THE  ARTICLES   OF    WAR.  497 

appeared  as  Section  '2  of  tlie  Act  of  June  30,  1834,'  and  was  embodied  in 
tlie  Articles  of  War  in  the  revision  of  1874. 

Although  the  Act  of  July  11,  179H,'  had  provided  "that  the  Marine 
Corps,  established  by  this  Act,  shall,  at  any  time,  be  liable  to  do  duty  in  the 
forts  and  garrisons  of  the  Vnited  States,  on  tlie  seacoast,  or  any  other  duty 
on  shore,  as  the  President  in  his  discretion  shall  direct,"  some  such  statu- 
tory provision  was  made  necessary  by  tlie  fact  that  the  military  and  naval 
Articles  of  War  are  distinct  and  separate  enactments,  neither  of  which  con- 
stitutes a  rule  of  discipline  for  forces  employed  under  the  other;  nor  may 
officers  of  one  branch,  by  virtue  of  either  enactment,  exercise  command  or 
autliority  in  the  other,  save  by  virtue  of  an  express  enactment  to  that  effect, 
like  that  contained  in  the  THth  Article. 

Article  79.  Officers  s// all  be  tried  only  by  (jeneral  coiirlx-uiartial ;  and 
no  olfirer  shall,  wlien  if  can  he  avoided,  be  tried  by  officers  inferior  to  him  in 
rank. 

Article  9,  Section  1.5,  of  the  British  Code  of  1774,  and  Article  7,  Section 
14,  of  the  American  Articles  of  177(5,  contained  the  requirement  that  "  no 
Field  Oflicer  shall  l)e  tried  by  any  person  under  the  degree  of  Captain," 
The  provision  appeared  in  its  present  form  as  Article  11,  Section  14,  of  the 
Ilesoliition  of  Congress  of  May  31,  178G,  and  was  re-enacted  as  Xo.  75  of  the 
Articles  of  loOG,  and  as  Xo.  70  of  those  of  1874. 

Whether  the  trial  of  an  officer  by  officers  of  an  inferior  rank  can  be 
avoided  or  not  is  a  question,  not  for  the  accused  or  the  court,  but  for  the 
officer  convening  the  court;  and  his  decision  (as  indicated  by  the  detail  itself 
as  made  in  the  convening  order)  upon  this  point,  as  upon  that  of  the  number 
of  members  to  be  detailed,  is  conclusive.'  An  officer,  therefore,  cannot  suc- 
cessfully challenge  a  member  merely  because  of  being  of  a  rank  inferior  to 
his  own.* 

The  statement  sometimes  added  in  orders  convening  courts-martial  to  the 
effect  that  "  no  officers  other  than  those  named  can  be  detailed  without 
injury  to  the  service  "  is  as  superfluous  and  unnecessary  for  the  purpose  of 
excusing  the  detailing  of  officers  junior  to  the  accused  as  it  is  for  account- 
ing for  the  fact  that  less  than  the  maximum  number  have  been  selected  for 
the  court.* 


'  4  Stat,  at  Large,  712. 
»  1  ibid. .  394. 

*  See  Article  75,  supra. 

*  Dig.  J.  A.  Gen..  89,  par.  1. 

»  Ibid.,  par.  2.  At  the  opening  of  a  trial  by  court-martial  it  was  objected  by  the 
tccuseii  that  nine  of  the  thirteen  members  as  detailed  were  his  inferiors  in  rank,  and 
that  the  detailing  of  such  inferiors  coukl  have  been  '-avoided  "  •without  prejudice  to  the 
service.  Held  that  tlie  ohjection  was  properly  overrnleci  by  the  court.  Whether  such 
a  detail  "  can  be  avoided '"  is  a  tiuestidii  to  be  determined  by  the  convening  authority 
alone,  and  one  upon  which  his  determination  is  conclusive.  See,  also,  Mullan  vs. 
U.  S..  140  U.  S..  240. 


498  MILITAR  Y  LA  W. 

Article  80.'  The  commanding  officer  of  each  garrison,  fort,  or  other 
place,  regiment  or  corps,  detached  battalion  or  companxj^  or  other  detachment 
in  the  Army,  shall  have  power  to  appoint  for  such  place  or  commaiid,  or  in 
his  discretion  for  each  battalion  thereof,  a  Summary  Court  to  consist  of  one 
officer  to  he  designated  by  him,  before  whom  enlisted  men  who  are  to  be  tried 
for  offeiises,  such  as  were  prior  to  the  passage  of  the  Act  "  to  promote  the 
adininistratio7i  of  justice  in  the  Army,"  ^  approved  October  first,  eighteen 
hundred  and  ninety,  cognizable  by  garrison  or  regimental  courts-martial, 
and  offenses  cognizable  by  field-officers  detailed  to  try  ofi'enders  under  the 
provisions  of  the  eightieth  and  one  hundred  and  tenth  Articles  of  War*  shall 
be  brought  to  trial  within  tioenty-four  hours  of  the  time  of  the  arrest,  or  as 
soon  thereafter  as  practicable,*  except  when  the  accused  is  to  be  tried  by 
general  court-martial ;  but  such  Summary  Court  may  be  appointed  and  the 
officer  desigyiated  by  superior  authority  when  by  him  deemed  desirable.* 
Act  of  June  18,  1898.     (30  Stat,  at  Large,  483.) 

'  Article  80  of  the  revision  of  1874  conferred  authority  for  the  appointment  of  the 
Field-officer's  Court  in  time  of  war.  It  was  repealed  l)y  the  Act  of  June  18,  1898.  (30 
Statutes  at  Large.  483.)  Article  80  contained  the  requirement  that  "  in  time  of  war  a 
tield-officer  may  be  detailed  in  every  regiment  to  try  soldiers  thereof  for  offenses  not 
capital;  and  no  soldier  serving  with  his  regiment  shall  be  tried  by  a  regimental  or  garri- 
son court-martial  when  a  tield-officer  of  his  regiment  may  be  so  detailed." 

This  court  was  created  during  the  continuance  of  the  War  of  the  Rebellion.  It  was 
the  purpose  of  the  Congress  in  establishing  it  to  replace  the  regimental  court-martial  for 
the  trial  of  offenders  by  a  tribunal  having  a  more  summary  and  less  formal  procedure. 
The  slatiite  establishing  the  court,  however,  was  open  to  the  construction  that  ^uch  tri- 
bunals  were  authorized  at  all  times,  and  in  time  of  peace  equally  as  in  time  of  war.  The 
80th  Article,  therefore,  expressly  limited  the  detailing  of  Field-officer's  Courts'to  "  time  of 
war."  The  Field-officer's  Court  thus  became  unauthorized  in  iirrte  of  peace  from  and  after 
June  22,  1874,  the  date  on  which  the  present  Article  took  effect  as  part  of  the  Revised 
Statutes.  The  Article  substituted  the  Field-officer's  Court  for  the  regimental  or  garrison 
court  in  time  of  war  in  all  cases  arising  in  a  regiment  for  the  trial  of  which  it  is  practi- 
cable to  detail  a  tield-officer  of  the  regiment.  This  court  ceased  to  exist  on  August  17, 
1898,  the  day  on  which  the  Act  of  June  18,  1898,  creating  the  Summary  Court  became 
operative. 

2  26  Statutes  at  Large,  648. 

2  The  80th  and  110th  Articles  of  War  were  expressly  repealed  by  the  Act  of  June  18, 
1898.     (30  Statutes  at  Large,  483.) 

*  The  provision  of  the  Act  that  accused  soldiers  shall  be  brought  before  the  Summary 
Court  for  trial  "within  twenty-four  hours  from  the  time  of  their  arrest,  or  as  soon  there- 
after as  practicable,"  is  not  a  statute  of  limitations  nor  jurisdictional  in  its  character,  but 
directory  only — directory  upon  the  officers  who.se  duty  it  is  to  bring  offenders  before  the 
court.  The  proceedings  will  thus  be  legally  valid  though  the  accu.sed  does  not  appear 
for  trial  within  the  period  specified.  So  Jtekl,  in  a  case  of  an  accused  soldier  arrested  on 
Saturday,  that  the  court  did  not  by  not  sitting  on  Sunday  lo.se  jurisdiction,  and  therefore 
that  it  is  not  necessary  that  a  Summary  Court  shotild  ever  sit  on  a  Sunday.  Dig.  J.  A. 
Gen.,  725,  par.  10. 

The  provision  in  the  Act  in  regard  to  the  trial  being  had  within  twenty-four  hours  of 
the  arrest  being  directory  only,  a  trial  held  after  that  time  is  entirely  valid.  Thus 
where  a  soldier,  by  reason  of  drunkenness  or  otherwise,  is  not  in  a  condition  to  be  tried 
within  that  time,  his  trial  may  be  postponed  till  he  is  in  such  condition.  (Ibid.,  727, 
par.  11.) 

*  The  statute  above  set  forth  (Act  of  June  18,  1898)  substitutes  the  Summary  Court 
for  (a)  the  Field-officer's  Court,  having  jurisdiction  for  the  trial  of  enlisted  men  in  lime 


7V//-;    ARTICLES  OF   WAR.  499 

The  officer  hnldliifj  the  Summarii  (.'our/  .•<]niU  have  power  to  administer 
oaths  and  to  hear  and  defurniine  such  cases,  ami  when  satisfied  of  the  guilt 
of  the  accused  adjudge  the  punishment  to  be  infictcd.'     Ibid. 

Summary  Courts  detailed  under  existing  laws  to  try  enlisted  men  shall 
not  have  power  to  try  capital  cases  or  commissioned  officers,  but  shall  have 
power  to  award  punishment  not  to  exceed  confinement  at  hard  labor  for  three 
months  or  forfeiture  of  three  montlis'  pay,  or  brdh,  and  in  addition  thereto, 
in  the  case  of  non-commissioned  officers,  redtiction  to  the  ranks,  and  in  the 
case  of  first-class  privates  reduction  to  second-class  privates  :  Provided,  Tliat 
a  Summary  Court  shall  not  adjudge  confinement  and  forfeiture  in  excess  of 
a  period  of  one  month,  unless  the  accused  shall,  before  trial,  consent  in  writ- 
ing to  trial  by  said  court;  but  in  any  case  of  refusal  to  so  consent,  the  trial 
may  be  had  either  by  general,  regimental,  or  garrison  court-martial,  or  by 
said  Summary  Court,  but  in  any  case  of  trial  by  said  Summary  Court, 
ivithout  co)ise>it  as  aforesaid,  the  court  shall  not  adjudge  confinement  or 
forfeiture  of  pay  for  more  than  one  month.  Section  4,  Act  of  ^larch  2,  1901. 
(31  Stats,  at  Large,  951.) 

Tliere  shall  be  a  Summary  Court  record  kept  at  each  military  post  and 
in  the  field  at  the  headquarters  of  the  proper  command,  in  luhich  shall  be 
entered  a  record  of  all  cases  heard  and  determined  and  the  action  had  there- 
on  ;  and  no  sentence  adjudged  by  said  Summary  Coiirt  shall  be  executed 
U7itil  it  shall  have  been  approved  by  the  officer  a2)pointiny  the  court,  or  by 
ihe  officer  commanding  for  the  time  being.     Ibid. 

When  but  one  commissioned  officer  is  present  with  a  command  he  shall 
hear  and  finally  determine  such  cases.''     Ibid. 

of  war,  and  {b)  tbe  old  Sumnuuy  Court,  biiviug  jurisdiction  for  the  trial  of  enlisted  men 
in  time  of  peace,  much  as  the  80lh  Article  of  AViir  (Section  7  of  the  Act  of  July  17,  1862, 
12  Stat.  L.,  598)  substituted  the  Field-otiiceis'  Court  for  the  regimental  court-martial  la 
time  ()f  war. 

■'  The  procedure  of  the  Summary  Court  should  be  similar  to  that  of  the  older  courts- 
martial.  The  charges  ami  specitications  should  be  read  to  the  accused,  and  he  be 
required  to  plead  guilty  or  not  guilty,  and  the  witnesses  should  be  sworn.  But  the  testi- 
mony is  not  set  forth  in  the  record.     Dig.  J.  A.  Gen.  725,  par.  13. 

The  Act  of  1898,  in  providing  that  the  trial  officer  "shall  have  power  to  administer 
oaths,"  has  reference  to  the  oaths  of  witnesses.  The  officer  himself  is  not  sworn.  But 
the  witnesses  must  be  sworn  ;  and,  in  a  case  in  which  it  appeared  that  the}-  were  not  ia 
fact  sworn,  held  that  the  proceedings  and  sentence  were  invalidated,  and  that  a  forfeiture 
imposed  was  illegall}-  charged  against  the  accused,  who  should  be  credited  with  the 
amount  of  the  same  on  the  next  muster  and  pay  roll.  But  the  record  need  not  state  In 
terms  that  the  witnesses  were  sworn  ;  it  will  be  presumed  that  the  law  has  been  com- 
plied with  uidess  the  contrary  appears.     Ibid.,  par.  14. 

A  Summary  Court  is  imt  empowered  to  issue  process  of  attachment  to  compel  the 
attendance  of  a  civilian  witness.     Ibid.,  jmr.  15. 

*  Where  a  post  conmiander  sits  as  a  Siunmary  Court  no  approval  of  the  sentence  is 
required  by  law,  but  he  should  sign  the  sentence  and  date  his  iignature.  A  certiticatioD 
by  the  post  adjutat>t  is  unnecessary  anil  irregular  and  should  not  be  permitted.     Dig. 


499a  MILITARY  LAW. 

Xo  one  while  holding  the  privileges  of  a  certificate  of  eligibility  to  promo- 
tion shall  be  brought  before  aSunwiary  Court,  and  non-commissioned  officers 
shall  not,  if  they  object  thereto,  be  brought  to  trial  before  Summary  Courts 
without  the  authority  of  the  officer  conqjetent  to  order  their  trial  by  general 
court-martial,  but  shall  in  such  cases  be  brought  to  trial  before  garrison, 
regimental,  or  general  courts-martial,  as  the  case  may  be.     Ibid. 

The  commanding  officers  authorized  to  ap2Jrove  the  sentences  of  Summary 
Courts  and  superior  authority  shall  have  power  to  remit  or  mitigate  the 
same.^     Sec.  3,  ibid. 

Post  and  other  commanders  shall  in  time  of  peace,  on  the  last  day  of 
each  month,  make  a  report  to  the  department  headquarters  of  the  number  of 
cases  determined  by  Summary  Court  during  the  month,  setting  forth  the 
ofenses  committed  and  the  penalties  awarded,  which  report  shall  be  filed  in 
the  office  of  the  judge-advocate  of  the  department,  and  may  be  destroyed  when 
■no  longer  of  use.''     Sec.  4,  ibid. 

The  commanding  officer's  approval  should  be  over  his  own  signature, 
and  as  forfeitures  adjudged  are  operative  only  upon  pay  accruing  subse- 
quent to  the  approval  unless  otherwise  directed  in  the  sentence,  the  date 
of  approval  sliould  be  entered  on  the  record.  Dig.  Opins.  J.  A.  G.,  1901, 
par.  2394. 

Where  a  soldier  who  had  been  convicted  by  a  Summary  Court  had 
passed  into  another  command,  so  that  the  officer  who  approved  his  sentence 
was  no  longer  his  commanding  officer,  such  officer  could  not  legally  exercise 
the  power  of  remission  or  mitigation  of  the  sentence.      Ibid.,  par.  2403. 

This  tribunal   was  intended   to  provide  for  the  trial  of  enlisted   men 

J.  A.  Gen.,  725,  par.  3.  The  statute  creating  the  original  Summary  Court  conferred 
autb'oritv  upon  tlie  post  commander  to  api)rove  but  not  to  ^lemit  or  mitigate  sentences 
imposed'bv  Summary  Courts.  Section  5  of  tlie  Act  of  July  27,  1892.  (27  Stat,  at  Large, 
277,)  liowever,  conferred  such  autliority,  and  jilaced  post  commanders,  in  this  respect, 
upon  the  same  footing  as  other  reviewing  authorities. 

>  It  will  be  observed  thai  tlie  s;auue  vests  liie  power  to  convene  the  Summary  Court 
in  tlie  cf>mmunder  of  a  regiment,  post,  garrison,  separate  battalion,  etc.,  subject  to  the 
nualilicution  that  "the  court  maybe  convened  and  tlie  officer  designated  by  superior 
autliority  when  by  him  deemed  desirable."  The  convening  authority  thus  vested  in  a 
superior  commauder  may  be  exercised  by  him  directly  (by  creating  the  court,  or  desig- 
nating the  trial  officer),  or  he  may  point  out  the  subordinate  commanders,  within 
the  sphere  of  his  authority,  by  wiiom  such  power  is  to  be  exercised.  Having  done  so. 
however,  the  subordinate  commanders  so  designated  become,  under  the  statute,  the 
reviewing  authoriiies  of  the  courts  created  in  pursuance  of  orders  from  superior 
authority,  and  the  proceedings  of  the  several  Summary  Courts  so  created  are  reviewed 
and  their' sentences  approved  and  made  operative  by  them;  and  such  superior  com- 
mander cannot  interpose  as  a  reviewing  authority:  liis  subsequent  action  in  respect  to 
them  being  restricted  to  the  field  of  mitigation  and  remission  which  is  expressly  vested 
in  him  by  the  statute  creating  the  court. 

•Section  7  of  the  Act  of  .Tune  18,  1898,  contains  the  requirement  that  the  statute 
shall  "  take  effect  .sixty  days  after  its  passage." 

'  See  tlie  chapters  entitled  Thk  Jurisdiction  of  Courts-martiai.  and  Thb 
Inferior  Courth-martial. 


THE  AliTICLES   OF   WAR.  499& 

under  all  conditions  of  service.  Held,  tlierefore,  that  the  surgeon  in  com- 
mand of  the  Army  and  Xavy  General  Hospital,  Hot  Springs,  Ark.,  being 
an  oflicer  of  the  Army,  has  authority  under  this  act  to  appoint  a  summary 
court  for  the  trial  of  enlisted  men  of  the  army  under  his  command.  Ami 
held,  that  if  the  V.  S.  General  Hospital  at  Fort  Myer,  Va.,  and  at  Fort 
McPherson,  Ga.,  were  not  included  in  the  ((jinniand  of  tlie  respective  post 
commanders,  the  surgeons  commanding  the  hosjjitals  would  \>v  competent 
under  the  act  cited  t<»  a[)point  Summary  Courts.  Held,  also,  where  the 
division  field  hospital  and  the  division  field  ambulance  company  were  inde- 
pendent commands  and  resj)onsible  directly  to  the  division  surgeon  and 
division  commander,  that  their  respective  commaiulers  were  com])etent  to 
appoint  Summary  Courts  for  the  same.  And  the  surgeon  in  comnumd  of  a 
U.  S.  hospital  ship  is  a  commanding  officer  within  the  meaning  of  the  Sum- 
mary Court  Act,  and  may  appoint  such  court  for  the  trial  of  enlisted  men  on 
such  ship.      Hid.,  par.  2405. 

Held,  that  the  Summary  Court  is  a  court-martial  within  the  meaning  of 
the  acts  making  appropriation  "  for  expenses  of  courts-martial,  *  *  *  and 
compensation  of  witnesses  *  *  *  attending  the  same."  The  Summary 
Court  officer  would  make  the  necessary  certificate  as  to  the  fact  of  attend- 
ance in  the  case  of  a  civilian  witness  and  administer  the  oath  respecting 
his  expense  account.      Hid.,  par.  240G. 

Exceptions  to  Jurisdiction  as  to  Persons. — The  Act  of  June  18,  1898, 
contains  the  requirement  that  "  no  one  while  holding  the  privileges  of  a 
certificate  of  eligibility  to  promotion  shall  be  brought  before  a  Summary 
Court,  and  that  non-commissioned  officers  shall  not,  if  they  object  thereto, 
be  brought  to  trial  before  Summary  Courts  without  the  authority  of  the 
officer  competent  to  order  their  trial  by  general  court-martial,  but  shall  in 
such  cases  be  brought  to  trial  before  garrison,  regimental,  or  general  courts- 
martial,  as  the  case  may  be.'"  It  will  thus  be  seen  that  the  Summary 
Court  is  without  jurisdiction  to  try  enlisted  men  "  holding  the  privileges  of 
a  certificate  of  eligibility  to  promotion,"  and  it  may  only  try  non-commis- 
sioned officers,  in  the  event  of  their  objection  to  such  trial,  witli  the 
authority  of  the  officer  competent  to  order  their  trial  by  general  court- 
martial. 

Article  81.  Every  officer  commanding  a  regiment  or  corps  shall,  subject 
to  the  provisions  of  Article  80,  be  competent  to  appoint,  for  his  own  regiment 
or  corps,  cotirts-martial,  consisting  of  three  officers,  to  try  offoises  not 
capital. 

This  appears  as  Article  59  of  Prince  Rupert's  Code  in  the  following  form: 
*'  The  Commission-Officers  of  every  regiment  may  hold  a  Court»Martial  for 
the  regiment,  upon  all  necessary  occasions,'"     From  this  it  would  appear 

>  Act  of  June  18,  1898.     (30  Stai    at  Lnrpe.  483.) 


500  MILITARY  LAW. 

that  all  the  commissioned  officers  present  for  duty  with  a  regiment  consti- 
tuted the  regimental  court-martial.  Articles  VZ  and  13  of  Section  15  of 
the  British  Codes  of  ITtio  and  IT 74  contained  a  similar  requirement,  but 
provided  that  five  officers  should  constitute  a  minimum  of  membership. 
Article  3,  Section  14,  of  the  Resolution  of  Congress  of  May  31,  1786,  fixed 
the  membership  at  three  and  vested  the  appointing  power  in  the  regimental 
commander.  The  clause  was  re-enacted  as  No.  66  of  the  Articles  of  1806 
and  as  Xo.  81  of  those  of  1874. 

Constitution,  Composition,  etc. — The  constitution  and  composition  of 
this  tribunal  have  already  been  explained.  In  addition  to  the  regiments 
constituting  the  line  of  the  army,  it  has  been  held  that  the  chief  of  engineers 
was  authorized  to  order  a  court  under  this  Article  for  the  trial  of  soldiers  of 
the  eno-ineer  battalion;  the  same,  in  connection  with  the  engineer  officers  of 
the  army,  being  deemed,  in  view  of  Sections  1094,  1151,  1154,  etc.,  of  the 
Revised  Statutes,  to  constitute  a  "  corps  "  in  the  sense  of  the  xVrticle.  So 
held  that  the  chief  of  ordnance  was  authorized  to  convene  such  a  court  for 
the  trial  of  the  enlisted  men  authorized  by  Section  1162,  Revised  Statutes, 
to  be  enlisted  by  him;  the  same  being  deemed  to  constitute,  with  the  ord- 
nance officers,  such  a  separate  and  distinct  branch  of  the  military  establish- 
ment as  to  come  within  the  general  designation  of  "corps  "  employed  in  the 
Article.  So  held  that  the  Chief  Signal  Officer,  under  the  provisions  of  the 
Acts  of  July  24,  1876,'  June  20,  1878,'  etc.,  relating  to  his  branch  of  the 
service,  was  authorized  to  order  courts-martial,  as  commanding  a  "  corps" 
in  the  sense  of  this  Article.' 

It  is  not  necesssary  that  an  order  convening  a  court  under  this  (or  the 
next)  Article,  in  time  of  war,  should  state  in  terms  that  it  is  not  practicable 
to  detail  a  field-officer  under  Article  80.  It  is  good  practice,  however,  and 
not  unusual,  to  add  a  statement  to  this  effect.' 

Article  82.  Every  officer  commanding  a  garrison,  fort,  or  other  place 
where  the  troops  consist  of  different  corps  shall,  suhject  to  the  provisions  of 
Article  80,  he  competent  to  appoint,  for  such  garrison  or  other  place,  courts- 
martial,  consisting  of  three  officers,  to  try  offenses  not  capiitalJ' 

In  order  to  provide  a  suitable  military  force  for  the  occupation  and 
preservation  of  such  forts,  castles,  or  other  fortified  places  as  constituted  a 


>  19  Statutes  at  Large,  97. 

^•mihid.,  146 

»  Dig.  J.  A.  Gen.,  92.  par.  1. 

*  Ibid.,  93,  par.  2.  Under  par.  89?,  Army  Regulations  of  1861,  it  devolved  upon  a 
department  commander  to  supervi.se  the  procccding.s  of  regimental  and  garrison  courts- 
martial  transmitted  to  his  headquarters,  and  if  he  discovered  any  material  error,  defect, 
or  omission  in  a  record,  or  in  the  action  taken  in  the  case  by  the  inferior  commander,  to 
return  the  proceedings  to  tlie  latter,  calling  liis  attention  to  the  correction  deemed 
proper  to  be  made.  This  parairrapli  is  not  contained  in  the  Regulations  of  1889  or 
in  the  existing  Regulation  of  1'^9.'i.     Ibid  ,  par.  ?>. 

'  See  the  chapter  entitled  The  InPeriok  Courts-martial. 


THE  ARTICLES  OF   WAR.  501 

part  of  the  defenses  of  the  realm,  garrisons  were  established,  and  maintained 
with  the  sanction  of  Parliament,  at  a  very  early  period  of  English  history  ; ' 
and  these  forces,  togetlier  with  tiie  personal  guards  of  the  sovereign,  consti- 
tuted, in  great  part,  the  lawful  military  establishment  during  the  .sixteenth 
and  seventeenth  centuries.  With  a  view  to  the  maintenance  of  discipline  in 
the  garrisons  thus  authorized,  the  governor,  or  commander,  was  em]»owered 
by  the  early  Articles  of  War'  to  assemble  courts-martial  for  the  trial  of 
offenders;  and  these  tribunals  were  placed  on  the  same  footing,  as  respects 
jurisdiction,  as  the  already  existing  regimental  courts-martial.  They  were 
to  consist  of  not  less  than  five  members,  and  their  sentences  were  inoperative 
until  they  had  been  confirmed  by  the  commanding  officer.  In  the  British 
Code  of  1774  the  requivemejit  appears,'  as  a  condition  precedent  to  their 
constitution,  that  the  garrison  shall  "  consist  of  detachments  from  different 
regiments,  or  of  independent  companies."  This  Article  was  embodied  as 
Article  12,  Section  1-1,  in  the  American  Articles  of  177G,  and  continued  in 
force  for  nearly  ten  years,  when  it  was  replaced  by  the  new  section  in  respect 
to  the  administration  of  military  justice  which  is  contained  in  the  Resolution 
of  Congress  of  May  31,  1T80;  in  which  enactment  the  authority  for  the  con- 
stitution of  regimental  and  garrison  courts-martial  was  contained  in  a  single 
Article  and  the  number  of  members  was  fixed  at  three.  In  this  form  it  was 
re-enacted  as  Xo.  CG  of  the  Articles  of  1800. 

Until  1880  the  junior  member  acted  as  the  judge-advocate  of  this 
tribunal,  but,  in  conformity  to  the  terms  of  General  Orders,  Xo.  15,  of  the 
War  Department  of  that  year,  separate  judge-advocates  were  required  to  be 
detailed  to  prosecute  cases  before  these  courts  in  behalf  of  the  United  States. 

The  garrison  or  detachment  court-martial  in  England  was  discontinued 
in  1829,  its  jurisdiction  being  merged  in  that  of  the  regimental  court- 
martial.* 

Constitution  and  Composition.* — It  is  not  essential,  in  this  or  the  preced- 
ing Article,  that  the  "  ofiicer  commanding  "  should  be  of  the  rank  of  field- 
officer.  A  commanding  officer,  though  a  captain  or  lieutenant,  may  convene 
a  court-martial,  under  this  Article,  provided  he  has  the  required  command.' 
A  commanding  officer,  however,  is  not  authorized  to  detail  himself,  with 
two  other  officers,  as  a  court  under  either  Article.' 

The  general  term  "  other  place  "  is  deemed  to  be  intended  to  cover  and 
include  any  situation   or  locality  whatever — post,   station,  camp,   halting- 

'  I.  Clode.  Mil    Forces.  52. 

'  See  Articles  of  1666  and  1672.     See,  also,  Clode,  Mil.  Law,  33. 

'  Article  14,  Section  15. 

*  Simmons,  si  110. 

'  See  the  chapters  entitled  respectively  Constitution  op  Cocrts-martial  and  Thk 

COMPOeiTION    OF  CorRTS-MARTIAI>. 

•Dig.  J.  A.  Gen.,  93,  par.  1. 

''Ibid.,  par.  2.  An  " actinfj  assistant  surgeon,"  not  being  an  oflBcer  of  the  Army, 
cannot  be  detailed  on  such  court.     Ihid. 


502  MILITARY  LAW. 

place,  etc. — at  which  there  may  remain  or  be,  however  temporarily,  a  separate 
command  or  detachment  in  wliich  dilTerent  corps  of  the  army  are  repre- 
sented, as  indicated  in  the  next  paragraph.  If  such  command,  so  situated, 
contains  three  officers,  other  than  the  commander,  available  for  service  on 
conrt-martial,  the  commander  will  be  competent  to  exercise  the  authority 
conferred  by  this  Article.' 

In  view  of  the  early  orders '  relating  to  the  subject,  and  of  the  practice 
thereunder,  it  has  been  held  that  the  presence  on  duty  with  a  garrison,  detach- 
ment, or  other  separate  command,  at  a  fort,  arsenal,  or  other  post  or  place,  and 
as  a  part  of  such  command,  of  a  single  representative,  officer  or  soldier,  of  a 
corps,  arm,  or  branch  of  the  service  other  than  that  of  which  the  bulk  of  the 
command  is  composed — as  an  officer  of  the  quartermaster,  subsistence,  or 
medical  department,  a  chaplain,  an  ordnance  sergeant  or  hospital  steward, 
an  officer  or  soldier  of  artillery  where  the  command  consists  of  infantry  or 
cavalrv,  or  vice  versa,  etc., — might  be  deemed  sufficient  to  fix  upon  the 
command  the  character  of  one  "where  the  troops  consist  of  different  corps," 
in  the  sense  of  this  Article,  and  to  empower  the  commanding  officer  to  order 
a  court-martial  under  the  same.  The  presence,  however,  with  the  command 
of  a  civil  employee  of  the  Army  (as  an  "acting  assistant  surgeon")  could 
have  no  such  effect.* 

Aeticle   83.  Regimental  and  garrison   courts-martial  and  summary 
courts  detailed  under  existing  laius  to  try  enlisted  men  shall  not.  have  jjower 
to  try  capital  cases  or  commissioned  officers,  hut  shall  have  •power  to  aicard 
punishment  not  to  exceed  confinement  at  hard  labor  for  three  months,  or  for- 
feiture of  three  months'  pay,  or  both;  and  in  addition  thereto,  in  the  case,  of 
non-co7nmissioned  officers,  reduction  to  the  ranks,  and  in  the  case  of  first- 
class  privates  reduction  to  second-class  privates:  Provided,  TJiat  a  summary 
court  shall  not  adjudge  confinement  and  forfeiture  i)i  excess  of  a  period  of 
one  month,  unless  the  accused  shall  before  trial  consent  in  writing  to  trial 
by  said  court;  but  in  any  case  of  refusal  to  so  coyisent  the  trial  may  be  had- 
either  by  general,  regimental,  or  garrison  court-martial,  or  by  said  Summary 
Court;  but  in  case  of  trial  by  said  Summary  Court,  witliout  consent  as  afore- 
said, the  court  shall  not  adjudge  confinement  or  forfeiture  of  pay  for  more 
than  one  month.      (Act  of  March  2,  1901.     31  Stat,  at  Large,  951.) 

The  grant  of  jurisdiction  to  the  regimental  court-martial  in  Albemarle's 
Articles,  as  well  as  in  the  I'rince  Rupert  Code  and  in  that  of  James  II.,  is 

'Dig.  J.  A.  Gen.,  93,  par.  B. 

*  In  order  that  the  practice  throughout  tiie  Army  under  the  second  clause  of  the  66th 
(present  82d)  Article  may  be  uniform,  it  is  published  for  the  information  of  all.  as  the 
opinion  at  General  Headquarters,  that  the  presence  on  duty  of  an  ordnance  sergeant,  like 
that  of  an  officer  or  man  of  any  other  ditl'erent  corps,  at  any  military  post  garrisoned  with 
troops,  gives  to  its  commanding  officer  the  legal  power  to  appoint  garrison  courts-martial 
for  the  trial  of  petty  military  offenses  committed  at  the  same.  Par.  1,  General  Orders, 
No.  5,  H.  Q.  Army,  January  18,  1843.  See,  also,  Gen.  Orders,  No.  13,  Fourth  Mil.  Dis- 
trict, 1867. 

5  lUd. ,  94,  par.  4. 


THE  AliTICLES  OF   WAR.  503 

somewhat  vague,  and  seems  to  have  rested  to  some  extent  upon  custom  of 
service;  the  commissioned  officers  of  every  regiment  being  authorized  to  hold 
a  court-martial  "on  all  necessary  occasions.'"  In  the  British  Codes  of  1765 
and  1774,'  and  in  the  American  Articles  of  1770,*  the  jurisdiction  conferred 
is  still  very  indefinite  in  character,  being  expressly  restricted  to  the  "inflic- 
tion of  corporal  punishment  for  small  otfenses."  In  Article  4,  Section  14, 
of  the  amendment  of  the  American  Articles  of  177<;,  which  is  embodied  in 
the  Resolution  of  Congress  of  May  31,  1780,  the  present  restriction  upon  the 
power  of  the  minor  courts  to  punish  military  ollenses  is  for  the  first  time 
made  the  subject  of  legislative  enactment,  together  with  the  clause  with- 
drawing capital  cases  and  tliose  affecting  commissioned  officers  from  the 
jurisdiction  of  regimental  and  garrison  courts-nuirtial.  As  so  modified,  the 
requirement  was  embodied  in  the  Articles  of  18U0  and,  save  for  the  addition 
of  the  clause  extending  the  provisions  of  the  Article  to  the  newly  created 
field-officer's  court,*  was  re-enacted  without  change  iu  the  revision  of  the 
Articles  in  1874. 

Extent  of  Jurisdiction.  ^The  power  to  punish  being  expressly  restricted 
to  the  forfeiture  of  three  months'  pay,  or  to  imprisonment  for  a  period  not 
longer  than  three  months,  a  sentence  forfeiting  pecuniary  allowances  in  addi- 
tion to  pay,  where  the  forfeiture  amounts  to  a  sum  greater  than  three  months' 
pay,  would  not  be  authorized  under  this  Article.*  So,  also,  a  sentence 
adjudged  by  a  garrison  court  of  confinement  "till  the  expiration  of  the  term 
of  service"  of  a  soldier  would  be  unauthorized  unless  the  soldier  had  no 
more  than  one  month  left  to  serve.* 

The  limitations  imposed  by  the  Article  have  reference  of  course  to  single 
sentences.  For  distinct  offenses  made  the  subject  of  different  trials  resulting 
in  separate  sentences,  a  soldier  may  be  placed  at  one  and  the  same  time 
under  several  penalties  of  forfeiture  and  imprisonment,  or  either,  exceeding 
together  the  limit  fixed  by  the  Article  for  a  single  sentence." 

An  inferior  court  is  not  empowered  to  impose  a  sentence  of  dishonorable 
discharge.  Such  a  punishment  is  not  expressly  authorized  by  the  83d  Article 
of  War,  to  be  adjudged  by  regimental,  garrison,  or  summary  courts-martial, 
the  power  to  impose  it  being  restricted  to  general  courts-martial  by  the 
Fourth  Article  of  War. 

While  inferior  courts  have,  equally  with  general  courts,  jnrisdiction  of 
all  military  offenses  not  capital,  yet,  in  view  of  tlie  limitations  upon  their 
authority  to  sentence,  it  is  in  general  inexpedient  to  resort  to  them  for  the 

>  See  Articles  50  and  62,  Prince  Rupert  Code,  and  Articles  47,  50,  and  56  of  the 
James  II.  Articles. 

'  Article  12,  Section  15. 
'  Article  12,  Section  14. 
<  Section  7,  Act  of  July  17,  1862.     (12  Stat,  at  Large,  598.) 

*  Dig.  J.  A.  Gen.,  95,  par.  3.     See,  also,  the  chapter  entitled  Punishments. 

•  Ibid.,  par.  4. 

'  Ibid.,  par.  6.     See  General  Orders,  No.  18,  War  Dept.,  1859. 


504  MILITARY  LAW. 

trial  of  the  graver  offenses,  such  as  larcenies,  aggravated  acts  of  drunken- 
ness, protracted  absences  without  leave,  etc.,  a  proper  and  adequate  punish- 
ment for  which  would  be  beyond  the  power  of  such  tribunals.  So,  as  a 
reviewing  officer  is  never  authorized  to  add  to  the  punishment  imposed  by 
any  court-martial,  the  more  serious  offenses  should,  where  practicable,  be 
referred  for  trial  to  general  courts-martial,  which  alone  are  vested  with  a 
full  discretion  to  impose  punishments  in  proportion  to  the  gravity  of  the 
offenses. ' 

Article  84.  The  judge-advocate  shall  admiyiister  to  each  member  of  the 
court,  before  they  proceed  upon  any  trial,  the  following  oath,  ivhich  shall  also 
be  taken  by  all  members  of  regimental  and  garrison  courts-martial :  "  You, 
A  B.  do  swear  that  you  will  well  and  truly  try  and  determine,  according  to 
evidence,  the  matter  now  before  you,  between  the  United  States  of  America 
and  the  prisoner  to  be  tried,  and  that  you  will  duly  administer  justice,  with- 
out partiality,  favor,  or  affection,  according  to  the  provisions  of  the  rules  and 
articles  for  the  government  of  the  armies  of  the  United  States  ;  and  if  any 
doubts  should  arise,  not  explained  by  said  Articles,  then  according  to  your 
conscience,  the  best  of  your  understanding,  and  the  custom  of  war  in  like 
cases  ;  and  you  do  further  swear  that  you  will  not  divulge  the  sentence  of  the 
coiirt  until  it  shall  be  published  by  the  proper  authority,  except  to  the  judge- 
advocate  ;  neither  7vill  you  disclose  or  discover  the  rote  or  opiyiion  of  any 
pvrticular  member  of  the  court-martial,  unless  required  to  give  evidence 
thereof,  as  a  witness,  by  a  court  of  justice,  in  a  due  course  of  law.  So  help 
you  Gody 

The  60th  of  the  Prince  Rupert  Articles  contains  the  following  require- 
ment as  to  the  oath  of  a  member:  "  Those  who  are  judges  in  Our  General 
Court-martials  *  *  *  shall  take  oath  for  the  due  administration  of  Justice 
according  to  this  Article,  or  (where  these  Articles  assign  no  absolute  punish- 
ment) according  to  their  consciences,  the  best  of  their  Understanding,  and 
the  custome  of  war  in  like  cases."  The  Articles  of  1H72  and  1686  contain 
a  similar  requirement.  In  Article  22  of  the  British  Code  of  1717  the 
clause  was  inserted  requiring  the  case  to  be  tried  "  without  partiality,  favor 
or  affection,"  and  upon  doubt  arising  "  not  explained  by  the  said  Mutiny 
Act  and  the  Articles  of  War,"  then,  as  before  directed,  "according  to  their 
consciences,  the  best  of  their  understanding  and  the  custom  of  war  in  like 
cases."'  This  oath  was  required  to  be  administered  to  members  of  the 
inferior  courts-martial  by  Article  6,  Section  14,  of  the  Resolution  of  Congress 
of  May  .31,  1786.  No  oath  was  required  of  the  members  of  a  regimental  or 
garrison  court  in  England  until  1805.' 

The  oath  in  substantially  its  present  form  appears  as  Article  6,  Section 
15,  of  the  British  Codes  of  1765  and  1774;  in  the  American  Articles  of  1776 

'  Dig.  J.  A.  Gen.,  95,  par.  7.  '  Clode,  Mil  Law,  113.  » Ibid..  139. 


THE  AKT1VLE:6   OF    WAR.  505 

and  in  the  revision  of  the  section  relating  to  the  administration  of  military 
justice,  by  the  Resolution  of  Congress  of  May  31,  1T8C,  tlie  oath  of  the 
British  Code  of  1774  is  replaced  by  two  forms  of  oath,  the  first  containing 
the  clause  respecting  the  trial,  the  second  the  undertaking  to  administer 
justice  and  the  clauses  relating  to  the  disclosure  of  the  lindiug  and  sentence. 
The  single  form  is  restored  in  ><o.  09  of  the  Articles  of  1800,  and  is 
so  re-enacted  in  the  Articles  of  1874.  The  clause  j)ermitting  the  disclosure 
of  the  finding  and  sentence  to  the  judge-advocate  was  inserted  by  the  Act  of 
July  37,  1892.' 

Procedure. — This  Article  makes  the  administering  to  the  court  of  the 
form  of  oath  thereby  prescribed  an  essential  preliminary  to  its  entering  upon 
a  trial.'  Until  the  oath  is  taken  as  sj)ecified,  the  court  is  not  qualified  "  to 
try  and  determine."  1'he  arraignment  of  a  prisoner  and  reception  of  his 
plea — which  is  the  commencement  of  the  trial — before  the  court  is  sworn  is 
without  legal  effect.  The  Article  requires  that  the  oath  shall  be  taken  not 
by  the  court  as  a  whole,  but  by  "  each  member."  Where,  therefore,  all  the 
members  are  sworn  at  the  same  time,  the  judge-advocate  will  preferably 
address  each  member  by  name,  thus:  "  You,  A.  B.,  C.  D.,  E.  F.,  etc.,  do 
severally  swear,"  etc.  A  member  added  to  the  court  after  the  members 
originally  detailed  have  been  duly  sworn  should  be  separately  sworn  by  the 
judge-advocate  in  the  full  form  prescribed  by  the  Article;  otherwise  he  is 
not  qualified  to  act  as  a  member  of  the  court.  A  member  who  prefers  it  may 
be  artirnied  instead  of  sworn.' 

Obligation. — The  members  are  sworn  to  try  and  determine  the  matter 
before  them  at  the  time  of  the  administering  of  the  oath.*  It  is  also  a 
departure  from  the  engagement  expressed  in  the  body  of  the  oath — to  try 
and  determine  according  to  evidence,  and  administer  justice  according  to  the 


'  27  Stat,  at  Large.  278.  In  the  leading  case  of  Dawkins  vs.  Rokeby  it  was  held  by- 
Justice  Willes  thnt  this  oath  "is  abundant  to  show  that,  with  respect  to  all  matters 
whicli  cf)ine  under  the  cognizance  of  the  military  tribunals,  they  are  subject  to  a  test  of 
law  which  is  different  from  that  administered  in  a  civil  court,  and  it  is  to  be  according 
to  military  usages  and  their  approval;  whereas  here  (in  the  Court  of  Common  Pleasi  we 
have  a  test  according  to  the  law  and  custom  of  England,  that  is  to  say.  the  law  and 
custom  which  regulate  ordinary  transactions  out  of  the  Army."  Dawkins  r*.  Rokeby, 
4Fos.  &  Fin..  833. 

'  See,  in  this  connection,  G.  O.  15.  Headquarters  of  Army,  1880,  cited  under  "Judge- 
advocate,"  section  1,  which,  in  directing  that  judge-advocates  shall  be  detailed  for  regi- 
mental and  garrison,  as  well  as  general,  courts-martial,  rescinds  G.  O.  49  of  1^71.  pre- 
scribing a  special  form  of  oath  for  the  former  courts,  and  thus  provides  for  their  taking 
the  due  and  regular  oath  recited  in  Article  84.     Dig.  J.  A.  Gen.,  96,  par.  1.  note  1. 

»  Dii:.  J.  A.  Gen.,  96.   par.  1. 

*  Ibid.,  97.  par.  2.  In  a  rase,  therefore,  where,  after  the  court  had  been  sworn  and 
the  accused  had  been  arraiirned  and  had  pleaded,  an  additional  charge,  setting  forth  a 
new  and  distinct  offense  was  introduced  into  the  case,  and  the  acc\ised  was  tried  and 
convicted  upon  the  same,  tield  that,  as  to  this  charge,  the  proceedings  were  fatally 
defective,  the  court  not  having  been  sworn  to  try  and  determine  such  charge.*    Ibid. 


•  See  General  Court-martial  Orders,  No.  39,  War  Dept.,  18«T;  Gen.  Orders.  Ko.  13,  Northern  Dept., 
1864. 


506  MILITARY  LAW. 

Articles  of  War,  etc. — for  a  court-martial  to  determine  a  case  either  upon 
personal  knowledge  of  the  facts  possessed  by  the  members  and  not  put  in 
evidence,  or  according  to  the  private  views  of  justice  of  the  members  inde- 
pendently of  the  provisions  of  the  code.' 

Where  the  vote  of  each  member  of  the  court  upon  one  of  several  specifica- 
tions upon  which  the  accused  was  tried  was  stated  in  the  record  of  trial, 
it  was  held  tliat  such  statement  was  a  clear  violation  of  the  oath  of  the  court, 
though  it  did  not  affect  the  validity  of  the  proceedings  or  sentence.  A 
statement  in  the  record  to  the  effect  that  all  the  members  concurred  in  the 
finding  or  in  the  sentence,  while  it  does  not  vitiate  the  proceedings  or  sen- 
tence, is  a  direct  violation  of  the  oath  prescribed  by  this  Article." 

The  obligation  in  respect  to  secrecy  arose  out  of  the  necessities  of  the 
case.  In  the  early  practice  of  courts-martial,  subsequent  to  the  passage  of 
the  Mutiny  Act,  the  books  of  the  War  Office  show  that  the  finding  of  each 
member  came  up  before  the  crown  or  general ;  with  a  view  to  the  security 
of  the  members,  the  oath  of  secrecy  was  imposed  as  early  as  Queen  Anne's 
reign  and  has  continued  to  the  present  day.^ 

The  words  "  a  court  of  justice  "  are  deemed  to  mean  a  civil  or  criminal 
court  of  the  United  States,  or  of  a  State,  etc.,*  and  not  to  include  a  court- 
martial.'  A  case  can  hardly  be  supposed  in  which  it  would  become  proper 
or  desirable  for  a  court-martial  to  inquire  into  the  votes  or  opinions  given  in 
closed  court  by  the  members  of  another  similar  tribunal.' 

The  disclosure  of  the  finding  and  sentence  to  the  judge-advocate  is 
expressly  authorized  by  statute;  such  disclosure,  however,  to  a  clerk  by 
permitting  him  to  remain  with  the  court  at  the  final  deliberation  and  enter 
the  judgment  in  the  record  is  a  violation  of  the  oath  and  a  grave  irregu- 
larity, though  one  which  does  not  affect  the  validity  of  the  proceedings  or 
sentence.'' 

Article  85.  When  the  oath  has  heen  administered  to  the  memhers  of  a 
court-martial,  the  president  of  the  court  shall  administer  to  the  judge-advocate, 
or  person  officiating  as  such,  an  oath  in  the  following  foryn  : 

"  You,  A  B,  do  swear  that  you  tvill  not  disclose  or  discover  the  vote  or 
opinion  of  a7iy  particular  member  of  the  coiirt-martial,  U7iless  required  to 


»  Dig.  .J.  A.  Gen.,  97.  par.  3.  Compare  G.  O.  21,  Dept.  of  the  Ohio,  1866;  G.  C.  M. 
O.  41,  Dept.  of  Texas,  18T4. 

'  Ihid.,  par.  4. 

3  Clode.  Mil.  Law,   114. 

*  The  only  csise  which  has  been  met  with  in  which  the  members  of  a  court-martial 
have  been  required  to  disclose  tlieir  votes  by  the  process  of  a  civil  court  is  that  of  In  re 
Mackenzie,  1  Pa.  Law  J.  R.,  356,  in  which  the  members  of  a  naval  court-martial  were 
compelled,"  against  their  objections,  to  state  their  votes  as  given  upon  the  findings  at  a 
pariicular  trial. 

5  In  the  corresponding  British  Article  the  words  "or  a  court-martial"  are  added 
after  the  words  "a  court  of  justice." 

«  Dig.  J.  A.  Gen.,  98,  par.  6. 

■•  Ihid. ,  par.  5. 


THE  ARTICLES   OF   WAR.  507 

mve  evidence  thereof,  as  a  witness,  by  a  court  of  justice,  in  due  course  of 
lata  J  nor  divulge  the  sentence  of  the  court  to  any  but  the  proper  authority 
until  it  shall  he  duly  disclosed  by  the  same.     So  help  you  God." 

The  judge-udvoeate's  oath  ai)j)oars  as  Article  »;,  Section  14,  of  the 
British  Code  of  1774  in  the  following  form:  "  1,  A.  B.,  do  swear  that  1  will 
not  u})on  any  account,  at  any  time  whatsoever,  disclose  or  discover  the  Vote 
or  Opinion  of  any  J'articular  Member  of  the  Court  Martial,  unless  required 
to  give  Evidence  thereof  as  a  Witness  by  a  Court  of  Justice  in  a  due  course 
of  Law."  It  was  repeated  in  this  form  as  Article  3,  Section  14,  of  the 
American  Articles  of  177<),  and  was  re-enacted  without  change  in  the  lieso- 
lution  of  Congress  of  ]\[ay  oi,  178G.  In  the  Articles  of  ISOO,  tlie  words 
"  upon  any  account,  at  any  time  whatsoever  "  were  omitted,  and  the  Article 
a])pears  as  No.  09  of  that  code  in  precisely  the  same  form  in  which  it  appears 
in  the  Articles  of  1874. 

The  member's  oath  imposes  certain  duties  npon  the  officers  to  whom  it 
is  administered,  in  respect  to  the  conduct  of  the  trial,  to  which  is  added  the 
obligation  of  secrecy  as  to  the  vote  or  opinion  of  any  member,  and  the 
undertaking  not  to  disclose  the  sentence  until  it  shall  have  been  disclosed  by 
the  proper  authority.  The  oath  of  the  judge-advocate,  on  the  otlier  hand, 
imposes  no  duties  save  that  of  secrecy  in  respect  to  the  findings  and  sen- 
tence, which  are  obtained  by  him,  not  from  his  own  knowledge  or  observa- 
tion, but  as  tliey  are  disclosed  to  him  by  the  president  of  the  court  with  a 
view  to  their  being  entered  upon  the  record. 

Article  86.  A  court-martial  may  punish,  at  discretioji,  any  person  icho 
uses  any  menacing  words,  signs,  or  gestures  in  its  presence,  or  who  disturbs 
its  proceedings  by  any  riot  or  disorder. 

Article  GO  of  the  Prince  Rupert  Code  contains  the  following  provision: 
•'  The  Officer  or  Souldier,  who  shall  presume  to  draw  his  sword  in  any  place 
of  Judicature  while  the  Court  is  sitting,  shall  suffer  such  punishment  as 
shall  be  inflicted  npon  him  by  a  Court-Martial.  And  We  do  hereby  autho- 
rize our  Provost-marshal  General  of  Our  Army,  by  his  own  authority,  to 
apprehend  such  offenders."  Although  this  offense  must  have  related  to  a 
particular  form  of  contempt  offered  to  a  civil  court,  it  is  not  so  restricted  by 
its  terms.  Article  70  of  tiie  same  code  related  to  the  offense  of  actual  con- 
tempt of  a  military  court,  and  appeared  in  the  following  form:  "  Xo  man 
shall  presume  to  use  any  braving  or  menacing  words,  signs,  or  gestures, 
where  any  of  the  aforesaid  Courts  of  Justice  are  sitting,  upon  pain  of  suffer- 
ing such  punishment  as  the  Court-martial  shall  think  tit."  Witli  a  slight 
verbal  change,  this  provision  appears  as  Article  16,  Section  15,  of  the  British 
Code  of  1774,  as  follows:  "  Xo  person  whatsoever  shall  use  menacing  Words, 
Signs,  or  Gestures  in  the  Presence  of  a  Court  Martial  then  sitting,  or  shall 
cause  anv  Disorder  or  Riot,  so  as  to  disturb  their  proceedings  on  the  Penalty 
of  being  punished  at  the  Discretion  of  the  said  Court-Martial."     With  the 


508  MILITARY  LAW. 

substitution  of  "  whatever"  for  "  whatsoever"  in  the  first  line,  it  appears 
as  Article  14,  Section  14,  of  the  American  Code  of  1776,  and  with  a  rever- 
sion to  the  earlier  form  of  "  whatsoever  "  it  appeared  as  Article  14,  Section 
14,  of  the  Kesolution  of  Congress  of  May  31,  178G,  and  was  re-enacted  with- 
out change  as  No.  76  of  the  Articles  of  1806.  In  its  present  form  the 
arrangement  of  clauses  is  not  quite  the  same  as  in  the  corresponding  Article 
of  18(J6,  but  its  force  and  legal  elfect  are  unchanged. 

The  power  of  a  court-martial  to  punish,  under  this  Article,  being  con- 
fined practically  to  acts  done  in  its  immediate  presence,  such  a  court  can 
have  no  authority  to  punish,  as  for  a  contempt,  a  neglect  by  an  officer  or 
Boldier  to  attend  as  a  witness  in  compliance  with  a  summons.' 

Where  a  contempt  within  the  description  of  this  Article  has  been  com- 
mitted by  a  person  subject  to  military  jurisdiction  and  the  court  deems  it 
proper  that  the  offender  shall  be  punished,  the  proper  course  is  to  suspend 
the  regular  business,  and,  after  giving  the  party  an  oppoi'tunity  to  be  heard 
in  defense,  to  proceed,  if  the  explanation  is  insufficient,  to  impose  a  punish- 
ment, resuming  thereupon  the  original  proceedings.  The  action  taken  is 
properly  summary,  a  formal  trial  not  being  called  for.  Close  confinement 
in  quarters  or  in  the  guard-house  during  the  trial  of  the  pending  case,  or 
forfeiture  of  a  reasonable  amount  of  pay,  has  been  the  more  usual  punish- 
ment. Instead  of  proceeding  against  a  military  person  for  a  contempt,  in 
the  mode  contemplated  by  this  Article,  the  alternative  course  may  be  pur- 
sued of  bringing  him  to  trial  before  a  new  court  on  a  charge  for  a  disorder 
under  Article  6Si.° 

Refusal  of  a  Civilian  Witness  to  Testify. — A  court-martial  has  none  of 
the  common-law  power  to  punish  for  contempt  vested  in  the  ordinary  courts 
of  justice,  but  only  such  authority  as  is  given  it  by  this  Article.  For  this 
reason  a  court-martial  would  not  be  authorized  to  punish,  as  for  a  contempt, 
under  this  Article  (or  otherwise),  a  civilian  witness  duly  summoned  and 
appearing  before  it,  who,  when  put  on  the  stand,  declines  (without  disorder) 
to  testify.'  In  such  a  case  the  witness  is  proceeded  against  in  accordance 
with  the  method  prescribed  in  the  Act  of  March  2,  1901,*  which  provides 
that  "Every  person  not  belonging  to  the  Army  of  the  United  States  who, 
being  duly  subpoenaed  to  appear  as  a  witness  before  a  general  court-martial 
of  the  Army,  wilfully  neglects  or  refuses  to  appear,  or  refuses  to  qualify  as 
a  witness  to  testify  or  produce  documentary  evidence  which  such  person 
may  have  been  legally  subpoenaed  to  produce,  shall  be  deemed  guilty  of  a 


'  Dig.  J.  A.  Gen.,  98,  par.  1. 

»  Ibid.,  par.  3.     Compare  Samuel,  634.     The  latter  course  baa  not  iufrequently  been 
adopted  in  our  service. 

»  Ibid.,  99,  par.  2.     See,  also,  18  Opin.  Att.-Gen,,  278. 

*  Act  of  March  2,  1901  (31  Stats,  at  Large,  951).  .  ..   _    -    -    -   ' 


TUE  ARTICLES  OF   WAR.  509 

misdemeanor,  for  which  such  person  shall  be  punisherl  on  information  in 
the  district  court  of  the  United  States;  and  it  shall  be  tlie  duty  of  the 
United  States  district  attorney,  on  the  certification  of  the  facts  to  him  by 
the  general  court-martial,  to  file  an  information  against  and  prosecute  the 
person  so  offending,  and  the  punishment  of  such  person,  on  conviction, 
shall  be  a  fine  of  not  more  than  five  hundred  dollars  or  imprisonment  not  to 
exceed  six  months,  or  both,  at  the  discretion  of  the  court:  Provided,  That 
this  shall  not  apply  to  persons  residing  beyond  the  State,  Territory,  or  dis- 
trict in  which  such  general  court-martial  is  held,  and  that  the  fees  of  such 
witness,  and  his  mileage  at  the  rates  provided  for  witnesses  in  the  United 
States  district  court  for  said  State,  Territory,  or  district,  shall  be  duly  paid 
or  tendered  said  witness,  such  amounts  to  be  paid  by  the  Pay  Department  of 
the  Army  out  of  the  appropriation  for  the  compensation  of  witnesses:  Pro- 
vided, That  no  witness  shall  be  compelled  to  incriminate  himself  or  to 
answer  any  questions  which  may  tend  to  incriminate  or  degrade  him.*'  * 

Article  87.  All  viemhers  of  a  court-martial  are  to  behave  with  decency 
and  calmness. 

Article  60  of  the  Prince  Rupert  Code  contained  the  requirement  that 
"  those  who  are  judges  in  Our  General  Court-martial,  or  in  regimental 
Court-martials,  *  *  *  shall  demean  themselves  orderly  in  the  hearing  of 
causes  (as  becomes  the  gravity  of  such  a  court)  *  *  *  ."  This  provision 
appears  as  a  part  of  Article  7,  Section  15,  of  the  British  Code  of  1774,  in 
the  following  form:  '"All  the  Members  of  a  Court  Martial  are  to  behave 
with  decency  and,  in  the  giving  of  their  votes,  are  to  begin  with  the 
youngest,"  The  requirement  was  repeated  as  Article  4,  Section  14,  of  the 
American  Code  of  1776,  with  the  addition  of  the  words  "and  calmness" 
after  the  word  "  decency  "  in  the  first  line;  with  a  view  to  remove  doubt  as 
to  the  meaning  of  the  word  "youngest,"  a  legislative  interpretation  was 
placed  upon  it  by  the  addition  of  the  words  "  in  commission."  In  this  form 
the  clause  was  re-enacted  as  Article  7,  Section  14,  of  the  Resolution  of  Con- 
gress of  May  31,  1786,  and  as  the  first  clause  of  No.  72  of  the  Articles  of 
1806.  In  the  Articles  of  1874  this  Article  was  divided  into  two;  the 
requirement  as  to  the  behavior  of  members  constituting  the  87th  Article, 
while  that  respecting  the  order  of  voting  was  embodied  in  the  98th  Article 
of  that  Code. 

Article  88.  Members  of  a  court-martial  may  be  challenged  by  a  prisoner, 
but  onlij  for  cause  stated  to  the  court.  The  court  shall  determine  the  relevancy 
and  validity  thereof,  and  shall  not  receive  a  challenge  to  more  than  one  mem- 
ber at  a  time. 

^  Act  of  March  2,  1901.  (31  Stats,  at  Larp:e,  951.)  The  power  to  proceed  asfainst  a  wit- 
ness for  refusing  to  testifj  before  a  court-martial  was  conferred  in  England  in  1830.  11 
Geo.  IV.,  ch.  7,  sec.  16. 


510  MILITARY  LAW. 


The  right  of  challenge  was  first  established,  as  a  custom  of  service,  by 
analogy  to  the  right  of  challenge  which  existed  in  behalf  of  an  accused 
person  at  the  common  law.  The  privilege  was  recognized  by  statute,  for 
the  first  time,  in  England  by  Section  5  of  the  Mutiny  Act  of  1847.  The 
right  first  received  statutory  sanction  in  the  United  States  by  Article  71  of 
the  Code  of  1800,  and  was  re-enacted  without  substantial  change  as  No. 
88  of  the  Articles  of  1874.' 

Extent  of  the  Right. — This  Article  authorizes  the  exercise  of  the  right 
of  challenge  before  a,ll  courts  except  field-officers'  courts  and  summary  courts. 
These  courts  are  not  subject  to  be  challenged,  because,  being  composed  of 
but  one  member,  there  is  no  authority  provided  which  is  competent  to  pass 
upon  the  validity  of  the  challenge.^ 

The  Article  imposes  no  limitation  upon  the  exercise  of  the  right  of  chal- 
lenge other  than  that  "  more  than  one  member  shall  not  be  challenged  at  a 
time."  Thus  while  the  panel,  or  the  court  as  a  whole,  is  not  subject  to 
challenge,  yet  all  the  members  may  be  challenged  provided  they  are  chal- 
lenged separately.  The  Article  contains  no  authority  for  challenging  the 
judge-advocate.'  The  terms  of  the  Article  also  forbid  what  are  called 
"  peremptory  challenges,"  that  is,  objections  to  members  for  which  no  cause 
is  stated. 

Time  of  Making. — Where,  before  arraignment,  the  accused  (an  officer), 
without  having  personal  knowledge  of  the  existence  of  a  ground  of  challenge 
to  a  member,  had  credible  hearsay  information  of  its  existence,  it  has  been 
held  that  he  should  properly  have  raised  the  objection  before  the  members 
were  sworn,  and  that  the  court  was  not  in  error  in  refusing  to  allow  him 
to  take  it  at  a  subsequent  stage  of  the  trial.* 

Courts  should  be  liberal  in  passing  upon  challenges,  but  should  not 
entertain  an  objection  which  is  not  specijic,  or  allow  one  upon  its  mere  asser- 
tion by  the  accused  without  proof,  and  in  the  absence  of  any  admission  on 
the  part  of  the  member.* 


'  See  the  title  "Challenges"  in  the  chapter  entitled  Incidents  of  the  Trial. 
'  Dig.  J.  A.  Gen.,  99,  par.  1. 

*  Ibid.,  102,  par.  15.  Challenges  to  the  array,  though  expressly  forbidden  in  the 
Article,  seem  to  liave  been  not  unknown  to  the  English  practice  during  the  period  prior 
to  1847,  where  the  risht  rested  upon  analogy  to  the  corresponding  civil  procedure. 
Hough,  Precedents,  662,  663.  See  as  to  the  judge-advocate,  Dig.  J.  A.  Gen.,  4ri7, 
par.  8.  The  practice  of  challenging  this  officer  ceased,  in  pursuance  of  a  War  Office 
order,  in  1830. 

*  Dig.  J.  A.  Gen.,  102,  par.  13.  The  fact  that  a  sufficient  cause  of  challenge  exists 
against  a  member  but,  through  ignorance  of  his  rights,  is  not  taken  advantage  of  by  the 
accused,  or  if  asserted  is  improperly  overruled  by  the  court,  can  affect  in  no  manner 
the  validity  in  law  of  the  proceedings  or  sentence,  though  it  may  sometimes  properly 
furnish  occasion  for  a  disapproval  of  the  proceedings,  etc.,  or  a  remission  in  whole  or 
in  part  of  the  sentence  i''id..  par.  14.  See,  also,  15  Opin.  Att.-Gen.,  432;  Keyes  vs. 
U.  S..  15  Ct.  Cis.,  532;  ibid  .  109  U.  S..  336. 

^  See  Dig.  J.  A.  Gen.,  101,  par.  12  and  note. 


THE  ARTICLES  OF   WAR.  511 

The  Voir  Dire  Form  of  Oath. — The  following  is  the  form  of  oath  to 
be  administered  to  ineniljofs  or  witnesses:  "You  swear  that  you  will  true 
answers  make  to  questions  touching  your  competency  as  a  member  of  the 
court  (or  witness)  in  this  case.     So  help  you  God."  ' 

Akticle  89.  When  a  prisoner,  arraigned  before  a  general  conrt-ntartial, 
from  obxtinacy  aiid  deliberate  design  stands  mute  or  answers  foreign  to  the 
purpose^  the  court  may  j^TOceed  to  trial  and  judgment  as  if  the  prisoner  had 
pleaded  not  gu  ilty. 

Under  the  ancient  criminal  practice  of  England,  if  a  prisoner  charged 
with  a  capital  felony  stood  mute,  it  was  deemed  that  no  trial  or  conviction 
could  be  had,  and  the  prisoner  was  obliged  to  undergo  the  peine  forte  and 
dure,  that  is,  to  be  pressed  to  death  in  prison,"  This  punishment  is  said  to 
have  been  inflicted  in  England  so  late  as  the  beginning  of  the  last  century. 
In  1772  an  Act  was  passed  in  England,  which  was  to  extend  to  the  colonies 
and  plantations  in  America,  by  which  if  any  person  arraigned  upon  an 
indictment  for  felony  or  piracy  should  stand  mute,  the  trial  was  to  be  pro- 
ceeded with,  and  the  court  was  to  award  judgment  and  execution  as  if  such 
person  had  been  convicted  by  verdict  or  upon  confession.'  Such  conviction, 
however,  took  place  only  when  the  refusal  to  plead  was  willful;  if  it  was  due 
to  defect  of  understanding,  the  defendant  was  remanded,  and  the  question 
of  such  defect  of  understanding  was  tried  by  the  jury.  Congress  in  the  first 
Crimes  Act,*  passed  in  1700,  adopted  the  humane  rule  that,  in  all  capital 
cases  defined  by  that  Act,  standing  mute  should  be  equivalent  to  a  plea  of 
not  guilty.'  Although  courts-martial  seem  to  have  interpreted  standing 
mute  as  a  plea  of  not  guilty  from  a  very  early  period,  the  practice  first 
received  statutory  sanction  in  the  United  States  in  No.  70  of  the  Article 

of  180(;. 

Article  90.  T he  J udge-advoeate.  or  some  person  deputed  by  him,  or  by 
the  general  or  officer  commanding  the  Army,  detachment,  or  garrison^  i<haU 
prosectite  in  the  name  of  the  United  States  ;  but  ivhen  the  prisoner  has  made 
his  plea,  he  shall  so  far  consider  himself  counsel  for  the  prisoner  as  to  object 
to  any  leading  question  to  any  (f  the  witnesses,  and  to  any  question  to  the 
prisoner,  the  answer  to  which  might  tend  to  criminate  himself. 

The  (J-lth  of  the  Prince  Rupert  Articles  contained  the  requirement  that 
"  in  all  criminal  causes  which  concern  Our  Crown,  Our  Advocate-General 
or  Judge- Advocate  of  Our  Army,  shall  inform  the  Court  and  prosecute  in 
Our  behalf  ";  which  is  repeated  in  the  o'2d  of  the  Articles  of  James  II.  in 
1086.     In  Article  6,  Section  15,  of  the  British  Codes  of  17(15  and   1774  it 

'  Manual  for  Courts-maitial,  eilition  of  July,  1898,  j>.  28. 

'  The  effect  of  this  was  to  preserve  ilie   blood  of  the  j)risouer  from  taiut  and  to  per- 
mit his  descendants  to  inherit.      1.  Stephen  Hist.  Crim.  Law,  298,  299. 
'  12  Ueo.  III.,  chap.  20. 

*  Section  30,  Act  of  April  30,  1790  (1  Stat,  at  Large,  119). 
»  //(  re  Smith,  13  Fed.  Kep.,  25. 


!:12  MILITARY  LAW. 

Is  provided  that  "  the  Jndge- Advocate-General  or  some  person  depnted  by 
him  shall  prosecute  in  His  Majesty's  Name,"  and  this  provision  is  repeated 
is  Article  3,  Section  14,  of  the  American  Articles  of  1776,  the  prosecution 
being,  hovrever,  in  the  name  of  the  United  States  of  America.  In  the 
amendment  of  this  section  by  the  Resolution  of  Congress  of  May  31,  1786, 
the  above  requirement  appears,  to  which  for  the  first  time  the  clause  is 
added  that  the  judge-advocate  "  shall  so  far  consider  himself  as  counsel  of 
the  prisoner,  after  the  said  prisoner  shall  have  made  his  plea,  as  to  object  to 
any  leading  question,  to  any  of  the  witnesses,  or  any  question  to  the  prisoner, 
the  answer  to  which  might  tend  to  criminate  himself."  In  this  form  the 
requirement  was  embodied  as  Xo.  69  of  the  Articles  of  1806. 

While,  as  has  been  seen,  the  American  Articles  have  since  1786  imposed 
upon  the  judge-advocate  the  somewhat  incompatible  duties  of  prosecutor 
and  counsel  for  the  accused,  a  contrary  tendency  has  manifested  itself  in 
England,  where,  since  1860,  it  has  been  expressly  provided  in  the  Articles 
of  War  '  that  the  judge-advocate  shall  no  longer  act  as  prosecutor,  or 
appear,  as  a  witness  for  the  Government,  during  the  progress  of  the  trial ;  ° 
his  duties  being  restricted  to  the  summoning  of  witnesses,  the  administration 
of  oaths,  the  preparation  of  the  record  of  proceedings,  and  advising  the  court 
in  matters  of  law. 

So  much  of  the  first  clause  of  this  Article  as  authorizes  the  judge-advo- 
cate to  depute  "some  person"  to  prosecute  for  him  is  now  practically 
obsolete.  In  the  British  Articles  of  1774  the  Judge- Advocate  General  was 
vested  with  authority  to  "  depute  "  a  person  to  represent  him  in  the  capacity 
of  public  prosecutor.  In  the  early  American  Articles  the  principal  officer 
of  the  Judge- Advocate  General's  Department  was  styled  indifferently  Judge- 
Advocate  and  Judge-Advocate  General,  and  he  was  similarly  empowered  to 
depute  a  suitable  officer  to  conduct  prosecutions  in  behalf  of  the  United 
States.  The  Act  of  March  16,  1802/  vested  the  power  to  appoint  "  a  fit 
person  to  act  as  Judge- Advocate  "  in  the  President  of  the  United  States,  and 
in  cases  where  the  President  shall  not  have  made  such  appointment  the 
Brigadier-General,*  or  the  president  of  the  court  may  make  the  same." 
This  provision  was  not  incorporated  in  the  Articles  of  1806,  although  the 
power  to  prosecute  is  there  vested  in  "  the  Judge-Advocate,  or  some  person 
depnted  by  him,  or  by  the  general  or  officer  commanding  the  army,  detach- 
ment, or  garrison."  The  office  of  Judge- Advocate,  or  Judge- Advocate 
(ieneral,  was  not  in  existence  between  April  10,  1806,  the  date  of  the  adop- 
tion of  the  Articles  of  that  year,  and  March  3,  1849,  the  date  upon  which 

1  Article  163,  British  Code  of  1860. 
»  (lode.  Mil.  Law,  110. 

»  Stat,  at  Large,  132.  The  brigadier-general  here  referred  to  being  the  senior  oflBicer 
of  the  Army  aa  then  constituted. 


THE  ARTICLES  OF  WAR.  513 

the  statute  reviving  the  office  of  Judge-Advocate  of  the  Army  became  opera- 
tive;' it  was  therefore  impossible  for  the  judge-advocate  of  a  general  court- 
martial  to  have  been  "  deputed  "  to  act  in  such  capacity  by  that  officer. 
During  that  interval  judge-advocates  were  selected  by  convening  officers 
acting  under  the  authority  conferred  by  the  G9th  of  the  Articles  of  isOC. 
In  the  Articles  of  1874,  altliough  the  clause  is  left  standing  as  a  part  of  the 
90th  Article,  the  power  to  appoint  judge-advocates  is  held  to  be  derived  from 
the  autliority  expressly  conferred  in  the  74th  Article  of  "War. 

Article  91.  The  depositions  of  iviinesses  residing  beyond  the  limits  of 
the  State,  Territory,  or  district  in  which  any  military  court  may  he  ordered 
to  sit,  if  taken  on  reasonable  notice  to  the  opposite  party  and  duly  authenti- 
cated, may  be  read  in  evidence  before  such  court  in  cases  not  capital. 

This  provision  appears  for  the  first  time  in  statutory  form  as  Article  10, 
Section  14,  of  the  Resolution  of  Congress  of  May  31,  1786.  It  Avas  re-enacted 
as  No.  74  of  the  Articles  of  1806.  The  present  Article  is  an  enactment  oi 
J 863.'  In  the  early  history  of  court-martial  procedure  the  evidence  was  in 
many  cases  (civil  rather  than  criminal)  taken  by  affidavit  sworn  before  the 
Judge- Advocate  General,'  who  would  seem  to  have  exercised  a  jurisdiction  in 
some  respects  resembling  that  of  the  grand  jury.  As  there  was  no  express 
authority  for  the  introduction  of  depositions  in  England,  the  conclusion  is 
warranted  that  if  such  instruments  of  evidence  were  introduced  in  court- 
martial  trials  it  was  rather  from  analogy  to  the  civil  procedure,  and  was  not 
regarded  as  a  matter  of  absolute  right,  to  be  exercised  in  pursuance  of 
authority  conferred  either  by  the  j\Iutiny  Act  or  by  the  Articles  of  War. 
At  present  there  is  in  the  British  service  no  specific  authority  of  law  for 
the  admission  of  depositions  upon  the  trial  of  military  offenses  properly  so 
called.  Such  right  as  may  be  said  to  exist  is  based  upon  an  interpretation 
of  two  statutes'  which  permits  the  introduction  of  testimony  by  deposition 
in  the  trial  of  offenses  punishable  by  the  ordinary  criminal  law.' 

Scope  of  the  Article. — It  is  the  purpose  of  this  Article,  in  its  application 
to  cases  pruperly  falling  within  its  scope,  to  provide  a  means  of  securing  the 
testimony  of  witnesses  who  reside  at  a  considerable  distance  from  the  place 
in  which  the  court  may  be  ordered  to  sit.  While  the  statute  is  in  general 
permissive  in  character,  there  are  some  cases  in  which  its  operation  is  rather 
directory  than  affirmative  or  permissive  merely. 

An  accused  party,  therefore,  cannot  be  deemed  to  be  entitled  to  have  a 
witness  summoned  from  a  distance  whose  military  or  administrative  duties 
are  of  such  a  character  that  they  cannot  be  left  without  serious  prejudice  to 
the  public  interests.     Article  VI  of  the  Amendments  to  the  Constitution, 

^         ■  .    ■    ■■  I.I—  —  -  -  —  ■  . .        .  -  ~ 

>  9  Stat,  at  Large,  351. 

»  Section  29,  Act  of  March  3.  1863  (12  Stat,  at  Large,  736). 

»  Clode,  Mil.  Law.  127. 

*  11  and  12  Viet.,  ch.  42,  sec.  17,  and  30  and  31  Vict.,  ch.  35,  36. 

*  Manual  of  Mil.  Law,  86. 


514  MILITARY  LAW. 

declaring  that  the  accused  shall  be  entitled  "  to  be  confronted  with  the  wit- 
nesses against  liim/'  applies  only  to  cases  before  the  United  States  courts.' 

Where  the  evidence  of  high  officers  or  public  officials — as  a  department 
commander,  or  chief  of  a  bureau  of  the  War  Department — is  required  before 
a  court-martial, — especially  if  the  court  is  assembled  at  a  distant  point, — • 
it  sliould  be  taken  by  deposition  if  authorized  under  this  Article.  Such 
officers  should  not  be  required  to  leave  their  public  duties  to  attend  as  wit- 
nesses, except  where  their  dei^ositions  will  not  be  admissible,  and  where  the 
case  is  one  of  special  importance  and  their  testimony  is  essential.' 

In  respect  to  the  cases  brought  within  its,  operation  by  the  Article,  how- 
ever, its  terms  are  mandatory,  and  a  deposition  cannot  be  read  in  evidence 
in  a  capital  case — as  in  a  case  of  a  violation  of  Article  31,  or  a  case  of  a  spy, 
or  one  of  desertion  in  time  of  war;  otherwise  in  a  case  of  desertion  in  time 
of  peace.  Nor  is  the  deposition  admissible  of  a  witness  who  resides  in  the 
State,  district,  etc.,  within  which  the  court  is  lield,  except  by  consent.' 

The  deposition  must  also  be  "duly  authenticated."  The  Article,  in 
specifying  that  the  deposition,  to  be  admissible  in  evidence,  shall  be  "  duly 
authenticated,"  makes  it  essential  that  the  same  shall  be  sworn  to  before, 
i.e.,  taken  under  an  oath  administered  by,  an  official  competent  to  administer 
oaths  for  such  purpose.  A  deposition  should  now  be  sworn  to  before  one  of 
the  military  officers  specified  in  the  Act  of  July  27,  1892,*  or,  if  such  an 
officer  be  not  accessible,  by  a  civil  official  competent  to  administer  oaths  in 
general.  An  official,  empowered  to  administer  oatlis  only  for  a  certain 
special  purpose  or  purposes  cannot  legtdly  qualify  a  witness  whose  dei30sition 
is  sought  to  be  taken  under  this  Article.^ 

'  Dig.  .1.  A.  Gen..  752,  p:ir.  10.  Thus  where  the  offense  charged  is  not  capital,  and  a 
deposition  may  therefore  legally  be  taken  under  tlie  91st  Article  of  War,  the  Secretary 
of  War  will  not  in  general  authorize  the  personal  attendance  at  the  place  of  trial  of 
a  witness  whose  offlre  or  duty  makes  it  necessary  or  most  important  that  he  should 
remain  elsewhere.     Ibid. 

»  Ibid.,  104.  par.  3.  The  Secretary  of  War  should  not  be  required  to  attend  as  a  wit- 
ness, or  to  give  his  deposition  in  a  military  case,  where  the  chief  of  a  staff  corps  or 
other  officer  in  whose  bureau  the  evidence  sought  is  matter  of  record,  or  who  is  per- 
sonally acquainted  with  the  facts  desired  to  be  proved,  can  attend  or  depose  in  his  stead. 
Ibid. 

^  Ibid.,  104,  par.  1.  Note  the  remarks  of  the  reviewing  authority  in  G.  C.  M.  O. 
103.  Dept.  of  the  East,  1871  ;  do.  1,  Division  of  South,  1875. 

^  Sec.  4  of  the  Act  of  July  27,  1892,  (27  Stat,  at  Large,  278,)  provides  that  judge- 
advocates  nf  departments  and  of  courts-martial,  and  the  trial  officers  of  summary  courts, 
are  hereby  authorized  to  administer  oaths  for  the  purposes  of  the  administration  of  mili- 
tary justice  and  for  other  purpo.ses  of  military  administration. 

The  Act  of  July  27,  1893,  c.  272,  s.  4,  in  authorizing  certain  military  officers  to 
administer  certain  oaths,  does  not,  of  course,  affect  the  power  of  other  officials  to 
administer  such  oaths  who  may  have  been  authorized  to  admintster  them  before  the 
passage  of  the  Act.  Such  officials  may  .still  admiuistcr  the  same,  and,  when  doing  so, 
should  be  paid  their  fees  as  notaries,  commissioners,  etc.,  as  before.  But,  to  avoid 
expense,  it  is  desirable  to  resort  to  the  officers  empowered  by  the  statute,  where  prac- 
ticable.    DW.  J.  A.  Gen.,  5:39,  par.  4. 

»  Dig.  J.  A.  Gen.,  105,  par.  9. 


THE  ARTICLES  OF   WAR.  515 

A  court-martial  has  no  power  to  qualify  or  authorize  a  commanding 
officer,  or  any  other  officer  or  person,  to  take  a  deposition  or  administer  an 
oath.' 

A  deposition,  introduced  by  either  party,  which  is  not  "duly  authenti- 
cated "  should  not  be  admitted  in  evidence  by  the  court,  although  tlie  other 
party  nuiy  not  object.  A  deposition  would  be  tlius  irregular  and  inadmis- 
sible where  it  failed  to  show  tluit  the  officer  by  whom  it  was  taken  was 
authorized  to  take  it,  or  that  he  was  qualified  to  administer  the  oath  to  the 
witness.' 

Procedure. — The  judge-advocate,  in  forwarding  the  interrogatories  for  a 
deposition,  should  transmit  with  them  a  subpoena  (in  duplicate)  requiring 
tlie  witness  to  api)ear,  at  a  stated  place  and  date,  before  a  certain  person  who 
is  to  take  tlie  deposition.  Particulars  not  ascertained  may  be  left  blank  to 
be  supplied  by  the  officer  or  person  by  whom  tlie  subpo'na  is  served.  When 
the  dei)osition  has  been  duly  taken  and  returned,  the  judge-advocate  should 
transmit  to  the  witness  (or  to  some  officer,  etc.,  for  him)  the  usual  certificate 
of  attendance  (accompanied  by  a,  copy  of  the  convening  order),  the  duration 
of  the  attendance  to  be  ascertained  from  the  deposition.' 

The  officer  detailed  to  have  a  deposition  taken,  i.e.,  to  see  to  its  being 
taken,  should,  before  serving  the  subpwna,  complete  it,  if  necessary,  by 
inserting  the  name  and  official  designation  of  the  notary  (or  other  official 
having  authority  to  administer  the  oath)  before  whom  it  is  to  be  taken,  and 
the  date  on  which,  and  the  place  where  it  is  proposed  to  take  it.  And  when 
the  deposition  has  been  duly  taken,  he  should  certify  it  as  so  taken,  and 
transmit  it  in  a  sealed  package  to  the  president  of  the  court.* 

Civilian  witnesses  who  duly  give  their  depositions  under  this  Article  are 
entitled  to  the  same  fees  and  allowances  as  are  witnesses  who  duly  attend  the 
court  in  person."  The  voucher  to  enable  such  a  witness  to  obtain  his  dues 
siiould  simply  set  forth  the  facts  as  to  his  service,  substituting,  for  the  usual 
statement  in  regard  to  attendance  before  the  court,  a  statement  that  he 
dulv  attended  as  a  witness  at  a  certain  time  and  place,  and  duly  gave  his 
deposition  before  a  certain  official  named." 

1  Di^.  .J.  A.  Gen.,  106,  par.  11. 
'  Ibid.,  lO.").  par.  8. 
^Ibid.,    463,  par.  36. 

*  Ibid.,  1(16,  par.  15. 

*  See  Manual  for  Courts-martial,  38.  par.  1-7.  See,  also.  Circular  No.  9,  H.  Q. 
Arrav,  1883. 

*  Dif?.  J.  A.  Gen..  106,  par.  16.  Held  that  duly  attending  by  a  civilian  witness  before 
a  duly  authorized  official  to  give  a  deposition,  to  be  used  in  evidence  on  a  military  trial, 
was  to  be  regarded  as  i)ractically  equivalent  to  attending  a  court-martial,  and  that  the 
deponent  was  entitled  to  be  paid  the  usual  allowances  {i.e.,  the  same  as  those  of  wit- 
nesses appearing  before  the  court)  out  of  the  regulur  appropriation  for  the  "  coiupensa- 
tion  of  witnesses  attending  before  courts-martial."     Ibid..  7")9.  par.  86. 

Held  that  the  sum  of  |3,  disbursed  by  an  officer  ordered  to  procure  a  deposition  to  be 


ol6  MILITARY  LAW. 

Admission  in  Evidence. — Tiiis  Article,  in  any  case  witliin  its  terms  and 
in  which  its  conditions  are  complied  with,  entitles  either  party  to  have 
depositions  taken  and  "read  in  evidence."  The  court  alone  has  no  power 
to  decide  that  a  deposition,  where  legal  and  material,  shall  not  be  taken.' 

A  deposition  duly  taken,  nnder  the  Article,  on  the  part  of  the  prosecu- 
tion, is  not  subject  to  objection  by  the  accused  and  cannot  be  rejected  by  the 
court  merely  upon  the  ground  that  it  is  declared  in  the  Sixth  Amendment  to 
the  Constitution  that  "  in  all  criminal  prosecutions  the  accused  shall  enjoy 
the  right  *  *  *  to  be  confronted  with  the  witnesses  against  him."  This 
constitutional  provision  has  no  application  to  courts-martial;  the  "criminal 
prosecutions  "  referred  to  are  prosecutions  in  the  United  States  civil  courts.' 

The  party  at  whose  instance  a  deposition  has  been  taken  cannot  be 
admitted,  against  the  objection  of  the  other  party,  to  introduce  only  such 
parts  of  the  deposition  as  are  favorable  to  him  or  as  he  may  elect  to  use;  he 
must  offer  the  deposition  in  evidence  as  a  whole  or  not  offer  it  at  all.* 

If  the  party  at  whose  instance  a  deposition  has  been  taken  decides  not  to 
put  it  in,  it  may  be  read  in  evidence  by  the  other  party.  One  party  cannot 
withhold  a  deposition  (duly  taken  and  admissible  under  this  Article)  against 
the  consent  of  the  other.* 

Questions  as  to  the  competency  or  credibility  of  the  deponent  are  deter- 
mined by  the  court,  and  the  deposition  of  an  incompetent  deponent,  though 
formal  and  properly  obtained  and  not  subject  to  exception  in  respect  to 
validity  of  execution,  is  not  admissible  in  evidence  at  a  trial  by  court- 
martial.' 

Aeticle  92.  All  persons  loho  give  evidence  before  a  court-martial  shall 
le  examined  on  oath  or  affirmation  in  the  folloiving form:  "  You  swear  {or 
affirm)  that  the  evidence  you  shall  give,  in  the  case  noiv  in  hearing,  shall  be 
the  truth,  the  whole  truth,  and  nothing  but  the  truth,     /bb  help  you  God." 

The  swearing  of  witnesses  was  first  required  by  the  Articles  of  1666, 
which  authorized  the  judge-advocate  "  to  send  for  witnesses,  and  to  admin- 
ister an  oath,  in  order  to  the  examination  and  trial  of  all  offenses."  Prince 
Rupert's  Code  and  the  Articles  of  1G72  and  1686  were  silent  on  this  subject; 
but  those  of  1717  directed  "that  all  witnesses  should  be  examined  upon 
oath."     In  the  Articles  of  1748,  and  in  those  subsequently  issued  until  the 

taken,  as  a  payment  to  a  justice  of  the  peace  before  whom  the  deposition  was  given, 
would  legally  be  reimbursed,  on  the  presentation  of  a  proper  voucher,  by  liie  Quarter- 
master Department,  out  of  the  appropriation  for  tlie  expenses  of  witnesses  before  courts- 
martial.     Ibid.,  107,  par.  17. 

'Dig.  .J.  A.  Gen.,  105.  par.  7. 

Ubid.,  107,  par.  18. 

-Ibid.,  104,  par.  3. 

*Ibid.,  105,  par.  4. 

*  Where  a  deposition  introduced  by  the  prosecution,  though  legal,  was  incomplete, 


THE  ARTICLES   OF   WAR. 


617 


year  1805,  the  oaths  were  imposed  only  in  cases  tried  before  general  courts; 
but  in  the  year  1805  (against  the  advice  of  many  general  officers,  including 
the  Duke  of  Wellington)  Parliament  for  the  first  time  imposed  oaths  upon 
the  judges  and  witnesses  in  regimental  courts.' 

Article  8,  Section  15,  of  the  British  Code  of  ITT-i  contained  the  require- 
ment that  "all  persons  who  give  evidence  before  a  general  court-martial  are 
to  be  examined  upon  oath  ";  which  is  repeated  in  Article  5,  Section  14,  of 
the  American  Code  of  1TT<J,  and  in  Article  8,  Section  14,  of  the  Resolution 
of  Conoress  of  May  oX,  1T8G;  in  which,  also,  for  the  first  time  an  afifirma- 
tion  is  authorized.  The  present  form  of  witnesses'  oath  was  first  prescribed 
in  No.  73  of  the  Articles  of  1806,  which  was  re-enacted  as  Xo.  92  of  the 
Articles  of  1874.  The  ancient  procedure  of  the  regimental  and  garrison 
courts-martial,  being  to  a  great  extent  summary  in  character,  did  not 
require  the  administration  of  oaths  to  either  members  or  witnesses.  They 
were  first  authorized  as  to  such  courts  in  England  in  1805.'  An  oath  was 
first  required  to  be  administered  to  all  witnesses  by  Article  8,  Section  14,  of 
the  Resolution  of  Congress  of  May  31,  178(3. 

The  Article  prescribes  a  single  form  of  oath  or  affirmation  to  be  taken 
by  all  witnesses.  The  Constitution,  however,  has  provided '  that  Congress 
shall  make  no  law  prohibiting  the  free  exercise  of  religion.  Where,  there- 
fore, the  prescribed  form  is  nut  in  accordance  with  the  religious  tenets  of  a 
witness,  he  should  be  permitted  to  be  sworn  according  to  the  ceremonies  of 
his  own  faith  or  as  he  may  deem  binding  on  his  conscience.* 

The  Article  does  not  prescribe  by  whom  the  oath  shall  be  administered. 

By  the  custom  of  the  service  it  is  administered  by  the  judge-advocate  ' 

When  the  judge-advocate  himself  takes  the   witness  stand,   he  is  properly 

sworn  by  the  president  of  the  court.* 

but  the  defect  was  waived  by  the  accused,  it  has  been  held  that  the  prosecution  was 
estopped  from  afterwards  questioning  it  as  competent  evidence.  Ibid.,  106.  par.  14. 
Where  the  judge-advocate  offered  in  evidence,  on  the  part  of  tLe  prosecution,  a  deposi- 
tion which  proved  to  have  been  given  bv  a  person  other  than  the  one  to  whom  the  inter- 
ro'^atories  were  addressed,  and  the  accused  objected  to  its  introduction,  but  the  objection 
was  overruled  by  the  court,  held  error  ;  the  fact  that  the  intended  deponent  was  but  the 
a;'ent.  in  the  transaction  inquired  about,  of  the  person  who  actually  furnished  the 
deposition  not  being  sufficient  to  make  such  deposition  admissible  except  by  consent  of 
parties.     Dig.  J.   A.  Gen.,  105,  par.  6.     See  Gen.  Court-martial  Order  No.  9.    H.  Q. 

Armv.  1879.''  ,  ^         •  •        •     ., 

The  provisions  of  Sections  866-870,  Revised  Stntutes,  relate  to  depositions  in  the 
United  States  courts  and  have  no  application  to  courts-martial,  which  are  no  part  of  the 
United  States  judiciary.  Held,  therefore,  that  there  was  no  authority  wliatever  for  pre- 
scribing, as  was  done  in  General  Order  2,  Department  of  Te.tas,  1888,  that  the  laws  of 
Te.xas  in  regard  to  the  taking  of  depositions  should  govern  depositions  in  military  courts 
held  within  tliat  State.  Ibid.,  par.  19. 
'  node.  Mil.  Law.  126. 

»4.5  Geo.  III.,  ch.  16.  sec.  17.     No  form  of  oath,  however,  is  prescribed  by  statute,  or 
by  the  Articles  of  War  in  the  British  service, 

*  Article  I  of  Amendments. 

♦  Dig.  J.  A.  Gen..  107,  par.  1;  I.  Greenleaf.  j;  371;  O'Brien,  260. 

*  Ibid.,  108,  par.  2;  see  Sec.  4,  Act  of  July  27,  1892  (27  Stat,  at  Large,  278). 

•  Ibid.,  par.  2. 


i)l8  MILITARY  LAVr. 

A  witness  who  has  once  been  sworn  and  has  testified  is  not  required  to 
be  resworn  on  being  subsequently  recalled  to  the  stand  by  either  party. 
The  reswearing,  however,  of  such  a  witness  will  not  ali'ect  the  legal  validity 
of  the  proceedings  or  sentence.' 

Akticle  93.  A  court-martial  shall,  for  reasonable  cause,  grant  a  cofitin- 
nance  to  dlhcr  party  for  such  time,  and  as  often  as  may  appear  to  be  just: 
j^rovided  that  if  the  prisoner  be  in  close  confinement,  the  trial  shall  not  le 
delayed  for  a  period  longer  than  sixty  days. 

This  provision  first  appeared  in  statutory  form  as  Section  29  of  the  Act 
of  March  3,  1803;"  prior  to  that  date  the  matter  was  regulated  by  custom  of 
service. 

Reasonable  Cause.— What  constitutes  "reasonable  cause,"  witliin  the 
meaning  of  the  Article,  is  a  matter  for  the  determination  of  the  court. 
^Yhere,  however,  such  "  reasonable  cause  "  is,  in  the  judgment  of  the  court, 
exhibited,  the  party  is  entitled  to  some  continuance  under  the  Article.^  A 
refusal,  indeed,  by  the  court  to  grant  such  continuance  will  not  invalidate 
the  proceedings,  but,  if  the  accused  has  thus  been  prejudiced  in  his  defense, 
may  properly  constitute  good  ground  for  disapproving  the  sentence,''  or  for 
mitigating  or  partially  remitting  the  punishment.^ 

Procedure. — In  making  an  application  for  a  continuance  or  postponement 
under  this  article  on  account  of  the  absence  of  a  witness,  it  should  distinctly 
appear  in   the  affidavit  of  the  applicant  that   the  witness  is  material  and 

1  Dig.  J.  A.  Gen.,  107.  par.  3. 
'  12  Stat,  at  Large,  736. 

2  It  would  properly  be  so  held  upon  common-law  principles,  even  independently  of 
the  positive  terms  of  the  Article.  In  Rex  vs.  D'Eou,  1  W.  Black. ,  514,  it  was  declared  by 
Lord  Mansfield  that  "  no  ciime  is  so  great,  no  proceedings  so  instantaneous,  but  that 
vpon  sufficient  qrounds  the  trial  may  be  put  off."     Dig.  J.  A.  Gen.,  109,  par.  2. 

*  See  G.  C.  IM.  O.  35,  War  Dept.,  1867;  do.  128,  Hdqrs.  of  Army,  1876;  G.  0.  24, 
Dej)t.  of  Arizona,  1874. 

^  Dig.  J.  A  Gen.,  109,  par.  2.  Wiiere  an  accused  soldier,  by  reason  of  his  regiment 
having  been  moved  a  long  distance  since  his  arrest,  was  separated  at  his  trial  from  cer- 
tain witnesses  material  to  his  defense,  held  that  he  was  entitled  to  a  reasonable  continu- 
ance for  the  purpose  of  procuring  their  attendance  or  their  depositions.     Ibid  .  par  3. 

That  the  cliarges  and  specifications  upon  which  an  accused  is  arraigned  differ  in  a 
material  parlicidar  from  those  contained  in  the  copy  served  tipon  him  before  ariaign- 
ment  may  well  constitiUe  a  stiflicienl  ground  for  granting  him  additional  time  for  the 
preparation  of  his  defense.     Ihid.,  par.  4. 

Where  after  arraignment  a  material  and  substantial  amendment  is  allowed  by  the 
court  to  be  made  by  the  judge-advocate  in  a  specification,  the  effect  of  which  amend- 
ment is  to  necessitate  or  make  desirable  a  further  preparation  for  his  defense  on  the  part 
of  the  accused,  a  reasonable  po.stponement  for  this  puri)ose  will  in  general  properly  be 
granted  by  the  court.     Dig.  J.  A.  Gen.,  109,  par.  5. 

It  is  in  general  good  ground  for  a  reasonable  continuance  that  the  accu.sed  needs 
time  to  procure  the  assistance  of  counsel  if  it  is  made  to  appear  that  such  counsel  can 
probably  be  obtained  within  the  time  asked,  and  that  the  accused  is  not  chargeable 
with  remissness  in  not  having  already  provided  himself  with  counsel.  Ibid.,  110, 
par.  6. 


TJIK  AUTICLES    OF    MAIL  519 

why,  and  tliat  tlie  party  has  used  due  diligence  to  procure  liis  attendance, 
and  lias  reasonable  ground  to  believe,  and  does  believe,  that  he  will  be  able 
to  procure  such  attendance  within  a  reasonable  time  stated.' 

While  the  court  may  refuse  the  application  if  the  conditions  above  set 
forLli  be  not  fulfilled,  it  may,  in  its  discretion,  refrain  from  insisting  that  the 
same  be  strictly  complied  with,  and  accept  a  modified  form.'^  It  should, 
however,  in  all  cases  rerpiire  that  the  desired  evidence  aj^pear,  or  be  shown 
to  be,  material  and  not  merely  cumulative,"  and  that  to  await  its  production 
will  not  delay  the  trial  for  an  unreasonable  period.  It  should  also,  in 
general,  before  granting  the  continuance,  be  assured  that  the  absence  of  the 
witness  is  not  owing  to  any  neglect  on  the  part  of  the  applicant.  This 
feature,  however,  will  not  be  so  much  insisted  upon  in  military  as  in  civil 
cases.* 

'  Dig.  J.  A.  Gen.,  108,  par.  1;  Manual  for  Courts-martial,  p.  29,  par.  2. 

'It  is  not  Ihe  practice  of  courtsiiiar.ial  to  admit  coiiiiti  r-affidavits  from  the  opposite 
jiarty  as  to  wliul  the  absent  witness  would  testify.  And  as  to  the  civil  practice,  see 
, Williams  rs   Slate,  fi  Nebraska,  ;5:U. 

^C'onipiue  People  m.  Tiio  npson,  4  Cal.,  23S;  Parker  vs.  Stale,  55  Miss.,  41-4. 

■■  Dig  J.  A.  Gen.,  108,  par.  1.  A  niililary  accused  cannot  be  charged  with  laches  iu 
not  procuring  the  attendance  at  his  trial  of  a  witness  who  is  jirevented  from  being  pres- 
ent by  superior  military  autiioiity.  Tlius  in  a  case  in  G.  O.  G3,  Dept.  of  Dakota,  1872, 
an  accused  soldier  was  lield  entitled  to  a  continuance  till  the  return  of  material  witnesses 
then  ab.sent  on  an  Indian  expedition. 

Postponements. — Postpoueraeuts,  strictly  speaking,  are  granted  by  the  convening 
au'iiority  in  virtue  of  Ids  power  to  constitute  courts-martial  ;  continuances  are  granted 
by  the  court  itself  under  Ihe  authoritv  conferred  by  the  above  Article.  The  subjict  of 
jiostponeuieiits  is  regulated  by  the  olhcer  appointing  the  court,  iu  accordance  with  the 
following  reqidicments  of  the  Manual  fur  Courts  martial  : 

If  postiionemenl  is  necessary,  ajjplication  therefor  should  properly  be  made  to  the 
convening  authority  Ix-fore  the  accused  is  arraigned.* 

Aiiplication  for  extended  delay  will,  when  practicable,  be  made  to  the  authorit}^ 
ajipointing  the  court.  When  made  to  the  court,  and  if  in  the  opinion  of  the  court  it  is 
Well  foiuKlcd,  it  will  be  referred  to  the  convening  authority  to  decide  whether  the  court 
shall  be  adiourned  or  dissolved.! 

The  94th  Article,  of  War,  which  was  repealed  by  Section  2  of  the  Act  of  March  2,  1901 
(31  Stats,  at  Large,  951),  contained  the  requirement  that  "  Proceedings  of  trials  shall  be 
carried  on  only  between  the  hours  of  eight  in  the  morning  and  three  in  the  afternoon, 
exce))ting  in  cases  which,  in  the  opinion  of  the  officer  aj^pointing  the  court,  require 
immediate  example." 

The  hours  of  session  were  fixed  at  from  8  a.m.  to  1  P.M.  in  tlie  first  Mutiny  Act.  In 
Article  9,  Section  15,  of  the  British  Code  of  1774  the  period  of  eacli  day  within  which 
courts-martial  may  lawfully  sit  is  fixed  at  from  eight  in  the  morning  to  three  in  the  after- 
noon "except  in  cases  which  require  an  immediate  example."  This  provision  was 
ado]>ted  as  Article  7,  Section  14,  of  the  Articles  of  177(i,  and  as  Article  11,  Section  14,  of 
the  Kesoluticm  of  Congress  of  May  31,  1786.  in  which  for  the  first  time  the  power  to  ad- 
judge the  necessity  for  sitting  beyond  the  statutory  hours  is  vested  in  the  convening 
authority.  As  so  modified,  the  clause  was  re-enacted  as  No.  75  of  the  Articles  of  1806, 
and  as  Article  94  of  the  revision  of  1874. 

There  is  now  no  re<juiremeiit  of  law  which  prescrilies  the  hours  of  session  of  courts- 
martial,  which  are  regulated  by  the  court  itself,  in  the  exercise  of  the  general  discretion  in 
respect  to  matters  of  procedure  which  is  vested  in  it,  by  the  rules  of  ])arliamentary  pro- 
cedure.    Since  the  repeal  of  the  94th  Article  it  is  of  course  no  longer  legally  necessary 


*  Mninial  for  Courts-martial,  p.  '.J9, 
t  IbuL,  par.  3. 


par.  1. 


520  MILITARY  LAW. 

Akticle   95.   Memhera   of  a   court-martial  in  giving   their  votes  shall 
begin  irifh  the  i/oungesf  in  rommission. 

Tliis  provision  does  not  appear  in  the  Prince  Kupert  Code.  In  the 
"  Eno-lisli  Military  Discipline"  of  James  11.  it  is  provided  that  "  the  Cap- 
tains  shall  sit  according  to  rank,  the  Lienteutants,  Sub-Lieutenants,  and 
Ensigns  have  right  to  enter  the  Room  where  the  Councel  of  War  (or  Court 
Martial)  is  held.  But  they  are  to  stand  at  the  Captains  backs  with  their 
hats  off,  and  have  no  Vote."  The  same  Article  contained  the  requirement 
that  "  the  youngest  Officer  gives  his  Opinion  first,  and  the  rest  in  order  till 
it  comes  to  the  President,  who  speaks  last."  Article  7,  Section  15,  of  the 
British  Code  of  1774  provides  that  members,  "  in  the  giving  of  Votes,  are  to 
beo-in  with  the  youngest."  The  American  Articles  of  1776  contain  the  same 
provision;  at  the  end  of  the  clause,  however,  the  words  "in  commission" 
are  added.  In  this  form  the  clause  appears  as  the  last  clause  of  No.  72  of 
the  Articles  of  1800  and  as  No.  95  of  the  Articles  of  1874. 

Article  96.  Xo  person  shall  he  sentenced  to  suffer  death  except  hy  the 
concurrence  of  two-thirds  of  the  members  of  a  general  court-martial  ayid  in 
the  cases  herein  expressly  mentioned. 

The  death-penalty,  either  in  the  form  of  a  mandatory  or  discretionary 
sentence,  appears  with  great  frequency  in  the  earlier  codes  of  military  law. 
The  cases  in  which  it  is  authorized  to  be  inflicted,  however,  diminish  in 
number  witli  the  advance  of  civilization  and  the  improvement  of  military 
discipline.  The  first  Mutiny  Act  contained  the  requirement  that  in  all  cases 
"  where  the  offender  may  be  punished  with  death,  the  Judges  were  to  be 
sworn  upon  the  Holy  Evangelists  well  and  truly  to  try  and  determine,  etc., 
*  *  *  and  nine  of  them  at  least  were  to  concur  in  the  sentence."  Article  8, 
Section  15,  of  the  British  Code  of  1774  contained  the  requirement  that  "  no 
sentence  of  death  shall  be  given  against  any  offender,  *  *  *  unless  Nine 
officers  present  shall  concur  therein."  This  provision  was  repeated  in 
Article  5,  Section  14,  of  the  American  Articles  of  1770,  and  as  Article  8, 
Section  14,  of  the  Resolution  of  Congress  of  May  31,  1780,  and  as  No.  87  of 
the  Articles  of  1896,  which  contained  the  added  requirement  that  no  death- 
sentences  were  to  be  imposed  "except  in  the  cases  herein  expressly  men- 
tioned."    In  this  form  it  was  re-enacted  as  No.  96  of  the  Articles  of  1874.' 


that  the  record  should  show  affirmatively  the  hours  of  meeting  and  adjournment. 
With  a  view  to  show  the  correct  sequence  of  trials,  when  more  than  one  takes  place 
on  the  same  day,  it  is  proper  and,  indeed,  the  best  practice  that  the  hour  of  meeting  and 
adjournment  should  be  set  forth  in  the  record. 

1  Though  it  has  sometimes  been  viewed  otherwise,  it  is  deemed  quite  clear  upon  the 
terms  of  the  present  Article  that  it  is  not  necessary  to  the  legality  of  a  death-sentence 
that  two  thirds  of  the  court  should  have  concurred  in  the  finding  as  well  as  the  sen- 


THE  ARTICLES  OF   WAR.  521 

Article  97.  No  person  in  (he  military  service  shall,  under  the  sentence 
of  a  court-martial,  be  punished  by  confinement  in  a  penitentiary  unless  the 
offense  of  which  he  may  be  convicted  umdd,  by  some  statute  of  the  Vtiited 
States,  or  by  some  statute  of  the  State,  Territory,  or  District  in  which  such 
offense  may  be  committed,  or  by  the  common  law  as  the  same  exists  in  such 
State,  Territory,  or  District,  subject  such  co?ivict  to  such  punishment. 

This  enactment,  which  is  peculiar  to  the  military  jurisi)ru(lence  of  the 
United  States,  is  in  substance  a  legislative  recognition  of  the  principle  that 
military  oifenses,  as  such,  are  not  felonies,  and  that  conviction  of  such 
offenses  should  involve  none  of  the  disabilities  which  attach  to  the  status  of 
felony  at  common  law.  'J'he  status  of  felony,  in  the  criminal  practice  of  the 
United  States,  is  eitlier  created  by  statute,  in  the  enactment  describing  a 
particular  offense  and  defining  its  punishment,  or  is  determined  by  the  place 
in  which  the  sentence,  if  of  imprisonment  or  confinement,  is  to  be  executed. 
If  such  sentence  involves  confinement  in  a  State  prison  or  penitentiary,  the 
punishment  is  infamous  and,  as  such,  operates  to  confer  some  of  the 
disabilities  incident  to  felony.  As  military  offenses  properly  so  called,  such 
as  desertion,  disobedience  of  orders,  neglect  of  duty,  and  the  like,  are  not 
felonies,  it  was  not  the  intention  of  Congress  that  any  of  the  consequences  of 
felony  should  attach  to  any  officer  or  soldier  who  was  convicted  of  them;  as 
a  result  Congress  in  18G3  enacted  this  Article,  the  operation  of  which  is  to 
restrict  sentences  of  imprisonment  in  State  prisons  and  penitentiaries  to 
offenses  which  "  would,  by  some  statute  of  the  United  States,  or  by  some 


lence.*  Further,  in  the  absence  of  any  requirement  to  that  effect  in  the  Article,  it  isnot 
deenietl  essential  to  the  validity  of  the  sentence  that  the  record  should  state  the  fact  that 
two-tiiirds  of  the  courl  concurred  therein.  The  practice,  however,  has  been  to  add  such 
a  statement.     Diu:.  J.  A.  Gen.,  113,  par.  1. 

A  sentence  ot  death  imposed  by  a  court-martial  upon  a  conviction  of  several  distinct 
offenses  will  be  authorized  and  k'<ral  if  any  one  of  such  offenses  is  made  capitally  pun- 
ishable by  the  Articles  of  War,  althouirh  the  other  offenses  may  not  be  so  punishable. 
Ibid.,  par.  2. 

A  court-martial  in  imposing  a  death-sentence  should  not  designate  a  time  or  place 
for  its  execution,  such  a  designation  not  being  within  its  province,  but  pertaining  to 
that  of  the  reviewing  authority.  If  it  does  so  designate,  this  part  of  the  sentence  may 
be  disregarded,  and  a  different  time  or  place  ti.xed  by  the  commanding  general.  Ibid., 
par.  3. 

Where  a  death-sentence  imposed  by  a  court-martial  lias  been  directed  by  the  proper 
authority  to  be  e.vecuted  on  a  particular  day,  and  tiiis  day,  owing  to  some  exigt-ncy  of 
the  service,  lias  gone  by  without  tlie  sentence  beiu^  executed,  it  is  competent  f<)r  the 
same  authority  or  his  proper  superior  to  name  another  day  for  the  purpose,  the  time  of 
its  execution  being  an  immaterial  element  of  this  punishment. f     Ibid.,  par.  4. 


*  Compare  McNaghten.  100. 

t  It  was  lield  liy  the  Siipieine  Potirt  in  Coleman  I'.t.  Tennes.see  (7  Otto,  519.  500)  that  a  soldier  who 
had  been  convioted  of  murder  and  .seiitt-noetl  to  death  by  a  sreneral  court-martial  in  May.  18(15,  but  the 
execution  of  wh<i';c  sentence  had  been  meanwhile  deferred  by  reason  of  his  escape  and  the  pendencv 
of  civil  proceedings  in  his  case,  might  at  tlie  date  of  tlie  rulinK  (October  term.  lH78l  "  be  dehvered  up 
to  the  military  antliorities  of  the  United  States,  to  be  d-^alt  with  as  required  bv  law." 

More  recently  (:May,  1S79,  10  Opins..  310)  it  has  \)ft-n  luld  in  this  case  liy  the  Attorney-General  that 
the  death-sentence  niitrht  legally  be  ex-^cuti-d  notwiihslandintr  the  fact  that  tlie  soldier  had  meanwhile 
been  discharged  from  the  service,  such  di-:charge,  while  foinially  separating  the  party  from  the  Armr. 
being  viewed  as  not  affecting  his  legal  status  as  a  military  convict.  But  in  view  of  all  the  circumstances 
of  the  case  it  was  recoiniiieiided  that  the  sentence  be  coiumuted  to  imprisonmeat  for  life  or  a  term  of 
years. 


522  MILITARY  LAW. 

statnte  of  the  State,  Territory,  or  District  in  which  snch  offense  may  be 
committed,  or  by  the  commou  law  as  the  same  exists  in  such  State,  Terri- 
tory, or  District,  subject  snch  convict  to  sucli  punisliment." 

As  this  Article,  by  necessary  implication,  prohibits  the  imposition  of 
confinement  in  a  penitentiary  as  a  punisliment  for  offenses  of  a  purely  or 
exclusively  military  character,'  it  follows  that  a  sentence  of  penitentiary 
confinement  in  a  case  of  a  purely  military  offense  is  wholly  unauthorized  and 
should  be  disapproved.  Effect  cannot  be  given  to  such  a  sentence  by  com- 
muting it  to  confinement  in  a  military  prison,  or  to  some  other  punishment 
which  would  be  legal  for  such  offense.  Nor,  in  case  of  such  an  offense, 
can  a  severer  penalty,  as  death,  be  commuted  to  confinement  in  a  peniten- 
tiary.^ 

An  offense  charged  as  "conduct  to  the  jirejudice  of  good  order  and  mili- 
tary discipline,"  which,  however,  is  in  fact  a  larceny,'  embezzlement,  violent 
crime,  or  other  offense  made  punishable  with  penitentiary  confinement  by 
the  law  of  the  State,  etc.,  may  legally  be  visited  witli  this  punishment.'* 

The  term  "  penitentiary,"  as  employed  in  this  Article,  has  reference  to 
civil  i^risons  only — as  the  penitentiary  of  the  United  States  or  District  of 
Columbia  at  Washington,  the  public  prisons  or  penitentiaries  of  the  different 
States,  and  the  penitentiaries  "erected  by  the  United  States  "  '  in  most  of 
the  Territories.     The  military  prison  at  Leavenworth  is  not  a  penitentiary 

1  Dig.  J.  A.  Gen.,  113,  par.  1. 

'  Ibid.,  par.  2.  Nor  can  penitentiary  confinement  be  lec;alized  as  a  puui.sbment  for 
purely  military  offenses  by  desig iidting  a  penitentiary  as  a  "  military  prison,"  and  order- 
ing the  confinement  there  of  soldiers  sentenced  to  imprisonment  on  conviclion  of  suck 
offenses.     Ibid.,  par.  o. 

Ileld  that  penitentiary  confinement  conld  not  legally  be  adjudged  upon  a  conviction 
of  a  violation  of  the  21st  Article,  alleged  in  the  specification  to  have  consisted  in  the  lift- 
ing up  of  a  weapon  (a  pistol)  against  a  commanding  oflicer  and  discharging  it  at  him 
•with  intent  to  kill.  By  charging  the  offense  under  this  Article,  the  Government  elected 
to  treat  it  as  a  purely  militar}'  offense  subject  only  1o  a  military  punishment.  So,  upon 
a  conviction  of  joining  in  a  mutiny,  in  violation  of  Article  22,  held  that  a  sentence  of 
confinement  in  a  penitentiary  would  not  be  legal  although  the  mutiny  involved  a  homi- 
cide, set  forth  in  the  specification  as  an  incidental  aggravating  circumstance.  To  have 
warranted  such  a  punishment  in  either  of  these  cases  the  Government  should  have  treated 
ttie  act  as  a  "  crime,"  and  charged  and  brought  it  to  trial  as  such,  under  Article  62. 
Ibid.,  115,  par.  10. 

"  Obtaining  money  under  fal.se  pretenses  "  is  ininishable  by  confinement  in  a  peni- 
tentiar}'  by  the  laws  of  Arizona.  A  sentence  of  court-martial,  impo.sing  this  ininishment 
on  conviction  of  an  offense  of  this  description  committed  in  this  Territory,  charged  as  a 
crime  under  Article  02,  held  authorized  by  Article  97.      Ibid.,  par.  12. 

^  In  a  case  of  larce.nij  the  court  should  inform  itself  as  to  wlrether  the  value  of  the 
property  stolen  be  not  too  small  to  permit  of  penitentiarry  confinement  for  the  offense 
under  the  local  law.  See  G.  O.  44,  Eighth  Army  Corps,'l862;  G.  C.  M.  O.  63,  Dept.  of 
the  Platte,  1872.     See,  also,  Dig.  J.  A.  Gen.,  11.5,  par.  13. 

■*  Dig.  .1.  A.  Gen.,  114,  par.  4.  So,  too,  where  the  act  is  charged  as  a  crime  under 
Article  62,  and  charge  and  specification  taken  together  show  an  offense  puni.shable  with 
confinement  in  a  penitentiary  by  the  law  of  the  locus  of  the  crime,  the  sentence  may 
legally  adjudge  such  a  punisliment.  So  held  in  a  case  where  charge  and  specification 
together  made  out  an  allegation  of  perjury  under  Sec.  .5392.  Rev.  Sts.  Ibid.,  115,  par.  11. 

*  See  Sec.  1892,  Rev.  Stat.,  and  the  Act  of  ,AIarch  2,  1895  (27  Stat,  at  Large,  957). 


77/ A'  Airn('l.K>    Ut     WAT!.  523 

in  tlie  sense  of  the  Article.     Tiie  term  State  (or  State's)  prison  in  a  sentence 
is  equivalent  to  ])euitentiary.' 

A  court-martial,  in  imposing  by  its  sentence  the  punishment  of  confine- 
ment in  a  j)enitentiary,  is  not  required  to  follow  the  statute  of  the  United 
States  or  of  the  State,  etc.,  as  to  the  term  of  the  confinement.  It  may 
adjudge,  at  its  discretion,  a  less  or  a  greater  term  than  that  afiixed  by  such 
statute  to  the  i)articular  offense.  At  the  same  time  tlie  court  will  often  do 
well  to  consult  the  statute,  as  indicating  a  reasonable  measure  of  punishment 
for  the  offense.^ 

Where  a  soldier  is  sentenced  to  be  confined  in  a  penitentiary,  the  proper 
reviewing  authority  may  legally  designate  any  State  or  Territorial  peniten- 
tiary within  his  command  for  the  execution  of  the  punishment.  Where 
there  is  no  such  penitentiary  available  for  the  purpose,  or  desirable  to  be 
resorted  to,  he  will  properly  submit  the  case  to  the  Secretary  of  War  for  the 
designation  of  a  proper  penitentiary.' 

lint  where  a  sentence  of  confinement  is  expressed  in  general  terms,  as 
where  it  directs  that  the  accused  shall  be  confined  "  in  such  place  or  prison 
as  the  proper  authority  may  order,"  or  in  terms  to  such  effect,  it  has  been 
held  that  the  same  may,  under  this  Article,  legally  be  executed  by  the  com- 
mitment of  the  party  to  a  penitentiary,  to  be  designated  by  the  reviewing- 
officer  or  Secretary  of  AVar,  jirovided  of  course  the  offense  is  of  such  a  nature 
as  to  warrant  this  form  of  punishment.'' 

A  military  prisoner  duly  sentenced  or  committed  to  a  penitentiary 
becomes  subject  to  the  government  and  rules  of  the  institution.'  A  sentence 
of  confinement  in  a  penitentiary,  however,  where  legal,  may  be  mitigated  to 
confinement  in  a  military  prison  or  at  militar}'  post.*^^ 

Akticle  98.  Xo  person  in  tlie  iniUtary  sercice  shall  he  punished  I ij  flog- 
ging, or  by  branding,  marking,  or  tattooing  on  the  body. 

'  Dig.  J.  A.  Gen.,  114,  par.  5.  Where  a  court-martial  speciticall}'  sentences  an 
accused  to  confinement  in  a  "military  prison,"  he  cannot  Icirally  l)e  committed  to  a 
penitentiary,  aithoui^h  sucli  form  of  imprisonment  would  bi'  auiliorized  by  the  character 
of  his  oflfeuse.     iiirf..  par.  9. 

^  Ihid.,  114,  pur.  8. 

'  Ibid.,  par.  7.     See  paragraphs  910  and  941,  Army  Regulations  of  1895. 

*  Ibid.,  par.  9. 

'  Ibid.,  par.  6.  A  discharged  soldier  serving  a  sentence  of  confinement  in  a  State  or 
Territorial  penitentiary  still  remains  under  military  control,  at  least  so  far  as  that  his 
sentence  may,  by  competent  military  authority  or  by  the  President,  be  remiited.  or  may 
be  mitigated — as,  for  oxninplc,  to  confiiu'incnt  in  a  niililiiry  jiiison  or  at  a  militarv  post. 
Where  the  place  of  confinement  is  a  State  or  Territorial  peniteniiaiy  which  is  within  a 
department  command,  the  commander  may  legally  ren)il  or  miliirate  the  senience.  But  the 
President  may  limit  this  authority  by  excluding  such  jienitentiaries  from  the  department 
command.  Tlie  function  of  remitting  the  sentences  of  discharged  soldiers  confined  ia 
penitentiaries  is  now,  by  regulation,  restricted  to  the  President.*     Ibid.,  116,  par.  16. 

*  Ibid.,  116,  par.  15. 

*  The  powpr  to  pardon  or  mitipate  punishment  impoRed  by  a  court-martial,  vested  in  the  authority 
which  confirms  the  proceedinps.  exiends  ontv  to  unexecuted  portions  of  a  sentence,  and  continues  only 
while  the  prisoner  remains  under  the  jurisdiction  of  that  authority:  the  fact  tliat  a  soMier  has  been 
dishonoral)ly  discharged  throut^h  his  sentence  does  not  affect  this  power.  An  application  for  clemency 
in  case  of  a  general  prisoner  sentenced  to  contlnenient  in  a  penitentiary  will  be  forwarded  to  the  Sec- 
retary of  War  for  the  action  of  the  President.    Par.  916,  A.  R.  1896. 


524  MILITARY  LAW. 

The  first  limitation  upon  the  inlliction  of  Hogging  as  a  military  punish- 
ment appeared  in  the  provision  of  No.  87  of  the  Articles  of  180G  depriving 
o-eneral  courts- martial  of  the  power  to  award  more  than  fifty  lashes  by  way 
of  punishment  for  any  military  ofi'ense.  Flogging  was  discontinued  as  a 
punishment  by  ^Section  T  of  the  Act  of  May  IG,  1812; '  it  was  revived,  how- 
ever, as  a  punishment  for  desertion,  and  continued  to  exist  as  such  until 
1861,  when,  bv  the  Act  of  August  5th  of  that  year,  it  was  finally  abolished." 

Article  99.  Xo  officer  shall  be  discharged  or  dismissed  from  the  service., 
except  hif  order  of  the  Fresidetit,  or  bij  sentence  of  a  general  court-martial ; 
and  in  time  of  'peace  no  officer  shall  be  dismissed  except  in  pursuance  of  the 
sentence  of  a  court-martial,  or  in  mitigation  thereof. 

Article  48  of  the  Prince  Rupert  Code  provided  that  "  all  commissions 
granted  by  Us,  or  Our  General,  to  any  Officer  in  pay,  shall  be  brought  to 
the  Muster  Master,  who  is  to  record  and  enter  the  same  in  a  book  fairly 
written.  And  no  Commissioned  Olficer  shall  be  allowed  in  mnsters,  without 
a  commission  from  Us  or  Our  General,  and  the  same  entered  with  the  Com- 
missaries-General of  the  musters,  or  their  Deputies,  who  are  required  forth- 
with, and  from  time  to  time,  to  send  the  Officers  names  to  the  Secretary  and 
Judo-e  Advocate  of  Our  Forces."  This  seems  to  have  been  the  first  attempt 
to  create  and  define  the  status  of  commissioned  officers  in  the  British  military 
establishment.  Article  49  of  the  same  code  contained  the  requirement  that 
"  no  Commissioned  Officer,  after  inrollment  and  being  mustered,  shall  be 
dismiss'd  or  cashier'd,  without  order  from  Us  or  Our  General,  or  Onr  General 
Court-Martial." 

This  provision,  however,  reserved  the  power  of  dismissal  to  the  sovereign, 
or  to  the  general  commanding-in-chief,  unless  such  dismissal  was  in  pursu- 
ance of  the  sentence  of  a  general  court-martial.  The  power  to  terminate  the 
engagement  of  a  commissioned  officer  by  dismissal,  upon  the  ground  that  his 
services  were  no  longer  needed,  has  been  recognized  from  the  earliest  times 
as  an  essential  incident  of  the  royal  prerogative;  the  tenure  of  military 
office  in  England  being  at  the  pleasure  of  the  sovereign,  A  similar  power 
of  summary  dismissal  was  recognized  to  exist  in  the  President,  as  an  incident 
of  his  power  to  make  appointments  to  office,  from  the  foundation  of  the 
Government  under  the  Constitution  until  1866,  when  the  enactment  of  this 
Article'  restricted  the  executive  power  of  summary  dismissal  to  a  time  of 
war. 

Dismissal  by  executive  order  is  qnite  distinct  from  dismissal  by  sentence. 
The  latter  is  a  punishment;  the  former  is  removal  from  office."     The  power 

'  2  Stat,  at  Large,  735. 

'  Act  of  Aiiirust  5,  1861  (12  State  at  Large,  317). 

'  Act  of  .July  13,  1866  (sec.  5.).  (14  Stat,  at  Large,  92).  A  similar  provision  is  con- 
tained in  Section  1229  of  the  Revised  Statutes;  see,  also,  Act  of  June  6,  1873  (17  Stat, 
at  Large.  261). 

♦  See  7  Opins.  Att.-Gen.,  251. 


THE  ARTICLES  OF  WAR.  525 

to  dismiss,  which,  as  being  an  incident  to  tlio  power  to  appoint  public 
officers,  liad  been  regarded  since  1789  as  vested  in  the  President  by  the  Con- 
stitution,' was  for  the  first  time  in  18GG  expressly  divested  by  Congress  in 
so  far  as  resjiects  its  exercise  in  time  of  peace.'  By  the  statute  law  it  is  now 
authorized  only  in  time  of  war.' 

Procedure. — Tlie  summary  dismissal  of  an  officer  in  time  of  war  is 
effected  bv  the  issue  of  an  order  designating  the  officer  by  name;  the  cause 
may  be  stated  or  withheld,  at  tlie  discretion  of  the  President.  A  summary 
dismissal  "by  order  of  the  Secretary  of  War"  is  in  law  the  act  of  the 
President.' 

A  summary  dismissal  of  an  officer  does  not  properly  take  effect  until  the 
order  of  dismissal  or  an  official  copy  of  the  same  is  delivered  to  him,  or  he  is 
otherwise  officially  notified  of  the  fact  of  the  dismissal.' 

In  summarily  dismissing  an  officer  the  Executive  cannot  at  the  same 
time  deprive  him  of  pay  due.  Nor  can  the  right  of  an  officer  to  his  pay  for 
any  prior  period  be  divested  by  dating  back  the  order  of  dismissal.  Such 
an  order  cannot  be  made  to  relate  back  so  as  to  affect  the  status  or  rights 
of  the  officer  as  they  existed  before  the  date  of  the  taking  effect  of  the 
order  of  dismissal.' 


'  See,  as  among  the  principiil  autliorities  on  this  subject,  Commonwealth  vs.  Bussier, 
5  Sergt.  &  Ra\vler461;  Kx  parte  Ilenneu,  13Peters,  258,  259;  United  Stales  vs.  Guthrie. 
17  Howard,  307;  4  Opius.  Att.-Gen.,  1,  609-613:  6  id.,  5,  6;  7  id.,  251;  8  id.,  230-232; 
12  id.,  424-426;  Sergeant,  Const.  Law,  373;  2  Story's  Com.,  §  1537,  note;  1  Kent's  Com., 
310;  2  Marshall's  Washington,  162. 

'  See  16  Opins.  Att.-Gen.,  315. 

'  During  the  late  war  it  was  exercised  in  a  great  number  of  cases,  sometimes  for  the 
purpose  of  summarily  ridding  the  service  of  unworthy  officers,  sometimes  in  the  form 
of  a  discharge  or  muster-out  of  officers  whose  services  were  simply  no  longer  required. 
The  distinction  between  this  species  of  dismissal  and  dismissal  by  sentence  is  illus- 
trated by  tlic  fact  that  the  former  has,  with  the  sanction  of  legal  authority,  been 
repeatedly  ordered  in  cases  where  a  court-martial  has  i>rt'viously  acquitted  the  officer  of 
the  very  offense-;  on  account  of  which  the  summary  action  has  been  resorted  to.  Dig. 
J.  A.  Gen.,  369,  par.  1;  see,  also,  12  Opin.  Att.-Gen.,  421;  McElrath  rs.  U.  S.,  12  Ct. 
Cls.,  201. 

••  Ibid. ,  370,  par.  3.  A  department  or  army  commander  can  have,  of  course,  no  author- 
ity to  summarily  dismiss  or  discharge  an  otficer  from  the  military  service.  But  where,  in 
a  ca.se  of  a  regular  officer,  this  authority  was  in  fact  exercised,  and  the  President,  treating 
his  office  as  vacant,  proceeded  to  till  the  vacancy  by  a  new  appointment,  held  that  he  had 
made  the  dismissal  his  own  act  and  legalized  the  same.*  So  where  (in  1863)  an  officer 
of  volunteers  was  dismissed  by  the  order  of  an  army  commander,  which  was  never 
ratified  in  terms  by  the  President,  but  a  successor,  appointed  to  the  vacancy  by  the 
governor  of  the  State,  was  accepted  and  mustered  in  by  the  United  States,  held(\n  1880) 
that  the  dismissal  was  to  be  regarded  as  having  been  substantially  ratified  .and  legalized. 
So  an  unauthorizeil  dismissal,  by  order  of  a  regular  otficer,  may  be  in  effect  made 
operative  by  a  subsequent  appointment  and  confirmation  of  a  successor— as  in  Blake's 

Case.t 

*  Dig.  J.  A.  Gen.,  370.  par.  5. 

*  Ibid.,  369,  par.  2.  Held  that  it  could  not  affect  the  operation  of  an  order  summarily 
dismissing  an  otficer  as  "second-lieutenant"  that,  before  its  being  communicated  to  him 
by  being  promidgated  to  the  regiment,  he  had  become  by  promotion  a  first  lieutenant. 
Ibid.,  370,  par.  6. 


♦  16  Opin.  Att-Gen..  298. 

t  Hlak-  vs.  U.  S.,  103  U.  S.,  231. 


626  MILITARY  LAW. 

Effect  of  Dismissal. — There  can  be  no  revocation  of  a  duly  executed  order 
of  dismissal,  however  unmerited  or  injudicious  the  original  act  may  be 
deemed  to  have  been.  For,  distinct  as  dismissal  by  order  is,  in  its  nature, 
from  dismissal  by  sentence,  the  effect  of  the  proceeding  in  divesting  the  office 
is  the  same  in  each  case.  An  officer  dismissed  by  an  order,  tliough  his  dis- 
missal may  have  involved  no  disgrace,  is  assimilated  to  an  officer  dismissed 
by  sentence,  in  so  far  that  he  is  completely  relegated  to  a  civil  status,  having 
in  law  no  nearer  or  other  relation  to  the  military  service  than  has  any  civilian 
who  has  never  been  in  the  army.  Thus  an  order  assuming  to  revoke  a  legal 
order  of  dismissal  is  as  unauthorized  as  it  is  ineffectual.  The  original  dis- 
missal is  an  act  done  which  cannot  be  undone,  and  the  order,  which  is  the 
evidence  of  it,  is  therefore  incapable  of  revocation  or  recall.' 

Xor  can  that  be  effected  indirectly  which  cannot  legally  l)e  done  directly. 
An  officer  dismissed  by  executive  order  cannot  be  relieved  by  being  allowed 
to  resign  or  be  retired,  or  ])y  l)eing  granted  an  honorable  discharge.  For,  in 
order  to  be  discharged,  etc. ,  from  the  Army,  he  must  first  be  in  the  Army, 
and  there  is  but  one  mode  by  which  an  officer  once  legally  separated  from 
the  Army  can  be  put  into  it,  viz.,  by  a  new  appointment  according  to  the 
Constitution." 


»  See40pins.  Alt. -Gen.,  1'24  ;  \2id.,  424-8;  l^id.,  520  ;  \5id.,  658.  Acoutrary  view 
expressed  bv  the  Court  of  Chiiins.  in  its  earlier  period,  in  a  series  of  cases,— see  Smitli 
rs  United  Slates,  2  Ct.  CI.,  2()()  :  Winters  xs.  United  States,  8  id.,  136  ;  Barnes  m.  United 
States.  4  id.,  216  ;  Moutgoinerv  vs.  United  States,  5  id.,  93,— was  linally  practically  aban- 
doned in  McElrath  i-^.  United  States.  12  «f..  201. 

«  Ditr.  J.  A.  Gen.,  371,  par.  8.  See  8  Opuis.  Alt.-Geu.,  23o  ;  12  id.,  421  ;  13  id.,  5  ; 
McElraTiifS.  United  States,  12  Ct.  CIs..  202.  _  .,.,,, 

That  a  siunniary  dismissal  is  not  revocable  by  an  executive  order  is  e.-tabhshed  law. 
Where  an  officer  duly  sununarily  dismissed  in  .luly,  1863,  and  subsequently  restored  by 
au  order  assuming  to  revoke  the  order  of  dismissal,  procured  to  be  passed  by  Congress 
in  1890  an  Act  recotrnizing  Ins  restoration  as  legal,  which,  however,  was  vetoed  by  the 
President,  held  that~his  status  was  that  of  a  person  who  had  been  illegally  in  the  mili- 
tary service  since  tlie  date  of  the  order  of  so-called  revocation.     Ibid.,  par.  9. 

'Held  tiiat  tlie  rulinir  in  Blake's  Case*  was  applicable,  and  that  the  office  of  an  army 
officer  mi<>ht  legally  lie  vacated  by  tlie  appointment  and  commission  of  a  successor, 
althouo-h  between  the  office  of  the  original  officer  and  that  of  the  successor  there  may 
have  interv<-ned  a  tenure  by  a  third  officer.  Thus:  (1)  Captain  A  was  dismissed  from 
his  office  without  legal  authority;  (2)  Captain  B,  an  unassigned  officer,  was  assigned 
to  the  capl.iincy  of  A,  and  held  it  till  his  own  resignation,  one  year  and  three  mouths 
liter  •  (3)  Lieutenant  C  was  then  promoted  and  appointed  to  the  office,  and  his  appoint- 
ment' was  contirnied.     Held  that  Lieutenant  C   was  the  legal  incumbent  of  the  office. 

Ibid..  372.  par.  12.  .      ,  ,  ,„   ,  .         ,•     u,    . 

Held  that  the  ruling  of  the  Supreme  Court  \n  the  case  of  F.lake  was  not  applicable  to 
volunteer  officers  of  s'tate  ortraiuzatious,  and  that  a  Governor  of  a  State,  who  had  duly 
appointed  a  ceri;iiii  volunteer  Officer  in  a  regiment,  was  not  empowered  to  dismiss  him 
by  simply  appointing  to  the  same  office,  commissioning,  and  causing  to  be  mustered 
into  the  U.  S.  service  another  person.     /WtZ  .  par.  13.  ...         ,t,     ,r,or.« 

Held  that  it  was  quite  evidently  the  intention  of  Congress  in  the  Act  of  July  l.>,  18*0, 
s  12  that  the  commissions  held  by  the  officers  who  lemaiued  unassigned  on  January  1, 
1871' should  cease  on  tluit  day.  No  action  on  the  part  of  a  mustering  officer  was 
required   to   carry  the   law   into  effect— as  is  shown  by  G.  O.  1  of  January  2,  1871,  in 

*  Blake  vt.  U.  S.,  10.3  U.  S.,  231. 


TILE  ARTICLES  OF    WAR. 


i27 


A  dismissal  of  an  otlicer  by  executive  order  does  not  operate  to  disqualify 
him  for  reappointment  to  military  office,  or  for  appointment  to  civil  office 
under  the  United  States. 

Trial  of  Dismissed  Officer. — It  is  provided  in  Section  1230,  Revised 
Statutes,  that  wlien  any  officer  dismissed  by  order  of  the  President  makes 
in  writing  an  application  for  trial,  setting  forth  under  oath  that  lie  has  Ijeen 
wrongfully  dismissed,  the  President  shall,  as  soon  as  the  necessities  of  the 
service  may  permit,  convene  a  court-martial  to  try  such  officer  on  the 
charcres  on  which  he  shall  have  been  dismissed.  And  if  a  court-martial  is 
not  so  convened  within  six  months  from  the  presentation  of  such  application 
for  trial,  or  if  such  court,  being  convened,  does  not  award  dismissal  or  death 
as  the  punishment  of  such  officer,  the  order  of  dismissal  by  the  President 
shall  be  void.' 

The  statute  does  not  indicate  within  what  period  after  the  dismissal  the 
application  for  a  trial  should  be  made.  It  can  only  be  said  that,  in  submit- 
ting it,  due  diligence  should  be  exercised — that  it  should  be  presented  within 
a  reasonable  time.'' 

Though  it  may  be  sufficient  that  the  application  made  under  the  statute 
should  state  simply  that  the  applicant  has  been  "  wrongfully  "  dismissed, 
the  preferable  form  would  be  for  the  applicant  to  set  forth  in  what  the 
alleged  wrong  consisted.^ 

Tiie  Act  of  March  3,  18G5,*  which  first  restricted  the  power  of  the  Presi- 
dent in  respect  to  the  dismissal  of  officers,  referring  as  it  does  to  officers 
"hereafter  dismissed,"  was  not  retroactive  in  its  operation,  and  did  not 


separation    fnnii   tlie  service,  ou  .January  1st,  of  the  uiiassigiieil  officers  was 
iiiounced.     Di-   .1.  A.  Geu.,  373,  par.  14.     See  Street  rs.  U.  S..  K5o  U.  S.,  299. 


which  the 
formally  am 

ThePresidenl  hail  mU  the  same  power  of  dismissal  iu  the  case  of  a  volunteer  officer 
as  he  has  ia  that  of  a  regular  officer.  This  for  the  reason  that  the  tenure  of  office  of  the 
former  is  for  a  fixed  term  and  for  a  limited  time  only  ;  the  power  to  dismiss  is  thus,  in 
his  case,  not  an  iucitlent  of  the  appointiiig  power.*  Bid  the  President  was  invested  with 
a  special  power  of  dismissal  of  volunteer  officers  by  the  Act  of  Congress  of  July  17,  18G2. 
Ibid  .  par.  11. 

Where,  by  the  direction  of  the  President,  an  order  was  issued  canceling  the  muster- 
in  of  a  volunteer  officer  on  account  of  fads  indicating  that  lie  was  not  a  tit  person  to 
hold  a  commission,  held  that  this  was  a  legal  exercise  of  the  autliority  of  summary  dis- 
missal for  cause  vested  in  the  President  by  the  Act  of  July  17,  1^60.     Ibitl..  par.  10. 

•Acts  of  March  3,  1865.  (sec.  12,)  (13  Stat,  at  Large,  489,)  June  22,  1874.  (sec.  2,) 
(18  ibid  ,  192). 

*  Dig.  J.  A.  Gen.,  373,  par.  2.  To  take  advantage  of  the  benefit  conferred  by  this 
section,"the  officer  must  apply  for  trial  witidii  a  reasonable  time  after  dismissal  or  ac(iui- 
escence  will  be  presumed.  A  delay  of  nine  years  in  a  particular  case  held  to  creaiesuch 
presumption  of  acquiescence.  Newton  vs.  tj.  S.,  18  C.  Cls.  R..  435;  Germaine  m.  U.  S., 
26  ibid. .  383. 

Held  that  a  party  who  (without  any  sufficient  excuse)  delayed  for  tiine  years  to  apply 
for  a  trial  under  the  statute  miglit  well  be  regarded  as  having  waived  his  right  tliereto. 
It  could  scarcely  have  been  conlcmplaled  by  Congress  tiiat  a  dismissed  officer  sh()uld  be 
at  liberty  to  defer  his  ;ipplication  for  a  trijiTtill  the  evidence  on  which  he  was  dismissed, 
or  a  material  part  of  the  s;ime,  had  ceased  to  exist,  and  his  restoration  would  thus  be 
made  certain.     Jbid. 

*  Ibid..  374.  par.  3. 

*  Sec.  12,  Act  of  March  3,  1865  (13  Stat,  at  Large,  489). 


*  Mechem  on  Public  Officers.  383,  §  445. 


628  MILITARY  LAW. 

embrace  cases  of  officers  dismissed  by  order  before  the  date  of  its  passage. 
And  it  has  been  similarly  held  as  to  the  provision  now  incorporated  in  Sec- 
tion 1-230,  Revised  Statutes;  the  same,  though  somewhat  dili'erently  worded 
from  the  ori^-inal  statute,  being  construed  as  not  intended  to  enlarge  the 
application  of  the  latter.' 

Althongh  the  Act  provides  that  if  the  sentence  of  the  court  be  not  one 
of  death  or  dismissal  the  party  tried  shall  be  restored  to  his  office,  yet  it  has 
been  held,  in  a  case  in  which  the  court  acquitted  the  accused,  that  the 
President  possessed  the  authority,  vested  in  reviewing  officers  in  all  other 
cases  tried  by  court-martial,  of  returning  the  proceedings  to  the  court  for 
revision,  and  was  therefore  empowered  to  reassemble  the  court  for  a  recon- 
sideration of  the  testimony,  on  the  ground  that  the  same  did  not,  in  his 
opinion,  justify  the  acquittal.'' 

Article  100.  \]lie7i  an  officer  is  dismissed  from  the  service  for  cowardice 
or  fraud,  the  sentence  shall  further  direct  that  the  crime,  'punishment,  name, 
and  jilacs  of  abode  of  the  delinque7it  shall  be  published  in  the  newspapers  in 
and  about  the  camp,  and  in  the  State  from  which  the  offender  came  or  tvhere 
he  visually  resides  ;  and  after  such  publication  it  shall  be  scandalous  for  an 
officer  to  associate  u'ith  him. 

This  Article  appeared  for  the  first  time  in  statutory  form  as  Article  22, 


1  Dio-.  J.  A.  Gen.,  373,  par.  1.  This  statute  was  held  l>y  tlie  Attoruey-Geueral  (12 
OpiDS.°4)  not  to  be  unconstilutioiiiil  in  that  it  was  not  "  oljuuxious  to  the  objection  that 
it  invades  or  frustrates  the  power  of  the  President  to  dismiss  an  officer."  More  serious 
objections  to  its  constitutionality  are  believed  to  be  :  (1)  that  it  authorizes  the  subjecting 
to  military  trial  of  a  civilian;  (2)  that  in  restoring  an  officer  to  the  Army  it  substitutes 
the  action  of  a  court-martial  for  the  appointing  power  of  the  President.  See,  also,  16 
Opin.  Alt.-Gen.,  599. 

Where  a  trial  of  a  volunteer  officer  under  this  statute  resulted  in  an  acquittal,  and  his 
oriffiual  dismissal  thus  became  "  void,"  but  meauM'hile  his  regiment  had  been  mustered 
oul'of  service,  held  that  he  was  properly  entitled  to  an  honorable  discharge  as  of  the  date 
of  the  muster-out  of  the  regiment,  with  full  pay  and  allowances  up  to  that  time.  Dig. 
J.  A.  Gen.,  374,  par.  4. 

Whatever  might  be  the  effect  untier  existing  law  upon  the  status  of  a  volunteer  offi- 
cer, acquitted  or  not  dismissed  by  a  court-martial  upon  a  trial  under  this  statute,  of  the 
fact  that  the  vacancy  created  by  his  original  dismissal  had  been  meanwhile  filled,  held 
that  the  effect  in  a  siinilar  case  of  an  officer  of  the  regular  army  would  be  to  add  him  to 
the  army  as  an  extra  officer  in  his  previous  grade.     Ibid.,  par.  5. 

Under  the  statute  of  1865  there  were  but  few  trials;  this  legislation  having  been  fol- 
lowed in  the  ne.xt  year  by  the  provision  of  the  Act  of  July  13.  1866,  (now  incorporated 
in  the  second  clause  of  Sec.  1229,  Rev.  Sts.,  and  the  99th  Article  of  War,)  prohibiting 
executive  dismissals  of  officers  of  the  Army  and  Navy  in  time  of  peace.  Since  tlie  date 
of  this  Act  there  have  been  no  trials  under  the  Act  of  1865;  the  later  statute  indeed 
would  appear  to  have  deprived  the  earlier  one  of  all  present  application  and  effect. 
Thus  held  (December,  1879)  that  an  officer  drojjped  for  desertion  under  the  first  clause  of 
Sec.  1229,  Rev.  Sts.,  was  not  entitled  upon  application  therefor  to  a  trial  under  Sec.  1230; 
that  the  provision  of  the  former  section  making  such  an  officer  ineligible  for  reappoint- 
ment in  the  Army  was  incompatible  with  his  restoration  by  the  action  of  a  court- 
martial  under  the  latter  section  ;  and  that  the  latter  section  applied  only  to  officers 
dismissed  by  order  of  the  President  under  the  general  power  to  remove  public  officers 
appointed  bv  him  and  frequently  exercised  in  cases  of  army  officers  during  the  late  war, 
b  It  which  as  to  its  exercise  in  time  of  peace  had  been  divested  by  Congress  by  the  Act  of 
Juiy  13,  1866.     Ilnd.,  par.  6. 

*Ibid.,  375,  par.  7. 


THE  ARTICLES   OF    WAll.  52^ 

Section  l-t,  of  tlie  American  Code  of  1776;  it  was  repeated  in  the  Resolution 
of  Congress  of  May  Ul,  1786,  as  No.  85  of  the  Articles  of  1806,  and  as  No. 
100  of  those  of  1874. 

The  terms  "  cowardice  "  and  "  fraud,"  employed  in  this  Article,  may 
be  considered  as  referring  mainly  to  the  otfenses  made  punishable  by  Articles 
42  and  60.  Witli  these,  however,  may  be  regarded  as  included  all  offenses 
in  which  fraud  or  cowardice  is  necessarily  involved,  though  tlie  same  be  not 
expressed  in  terms  in  tlie  charge  or  specitication.' 

Though  the  injunction  of  the  Article,  as  to  the  direction  to  be  added 
in  the  sentence,  should  be  regularly  complied  with,  a  failure  so  to  comply 
will  not  affect  the  validity  of  the  punishment  of  dismissal  adjudged  by 
the  sentence."  The  declaration  of  the  Article  that  after  the  publication 
"it  shall  be  scandalous  for  an  officer  to  associate  with"  the  dismissed 
officer,  though  it  has  in  a  few  cases'  been  incorporated  in  the  sentence,  is 
not  intended  to  l)e,  and  should  not  be,  so  expressed  by  the  court." 

Akticle  101.  ]Vhen  a  court-martial  suspends  an  officer  from  command, 
it  may  also  suspend  Jus  pai/  and  emoluments  for  the  same  time,  according  to 
the  7iature  of  his  offense." 

This  provision  appeared  for  the  first  time  in  statutory  form  as  Article 
21,  vSection  14,  of  tlie  Eesolution  of  Congress  of  1786;  it  was  re-enacted 
without  change  as  No.  84  of  tlie  Articles  of  1806,  and  as  Xo.  101  of  those 
of  1874.  At  the  date  of  the  legislation  of  1786  suspension  was  already 
recognized  by  custom  of  service  as  a  punishment  properly  to  be  imposed 
upon  commissioned  officers;  the  effect  of  this  enactment,  therefore,  was  to 
give  statutory  sanction  to  a  punishment  already  recognized  by  custom  of 
service. 

Form. — The  punishment  of  suspension,  as  imposed  by  sentence,  is  usually 
in  the  form  of  a  suspension  from  ra7ik,  or  from  conwiand,  for  a  stated  term, 
sometimes  accompanied  by  a  suspension  from  piay  for  the  same  period.  Sus- 
pension from  rank  includes  suspension  from  command." 


'  Dii:.  J.  A.  Geii..  117.  par.  1. 

-  Note  the  iiction  taken  in  the  c:\se  published  in  G.  C.  ^I.  O.  27.  War  Dept.,  1872. 
3  As  in  ca-^es  iMiblishcil  iu  G.  O.  (A.  &  I.  G.  O.)  of  May  13,  1820;  do.  168,  Dept   of 
the  Missouri.  1865. 

*Y)\g.  .1.  A.  Gc-n.,  117.  par.  2. 

*  See',  in  the  eiiapter  entitled  Punishments,  the  title  "  Punislnnents  of  Officers. '" 

*  Disr.  J.  A.  Gen..  729.  par.  1.  Suspension  as  a  ininishnient  for  a  non  comv\issi'<ned 
officer  is  not  authorized  in  terms  in  Article  101,  nor  is  it  conteniplaled  in  the  Army 
Resiulations.  It  lias  been  adjudged  in  but  rare  cases,*  and  cannot  be  regarded  as  sanc- 
tioned by  principle  or  usage.  Ibid.,  733,  -^vir.  15.  It  is  not  infrequently  impo.-ed.  how- 
ever, as  a  punishment  for  cadets  at  the  Military  Academy. 

A  sentence  "  to  be  suspended  from  the  Military  Academy  "  in  a  case  of  a  cadet  prac- 
tically severs  him  from  the  performance  of  his  duties  as  a  cadet  during  the  term  of  tlie 
suspension.  It  is  usiuiliy  added  in  such  a  sentence  that  at  the  end  of  such  term  the  party 
is  to  join  the  next  lower  class.     Ibid.,  732,  par.  13. 


*  See,  for  a  comparatively  recent  instance,  G.  C.  M.  O.  33,  Dept.  of  the  East,  1ST2. 


530  MILITARY    LAW. 

The  form  of  T\'ords  used  in  a  sentence  of  suspension  should  be  snch  as  to 
indicate  clearly  the  scope  and  character  of  the  punishment  intended  to  be 
imposed,  as  "  to  be  suspended  from  rank,''  or  "  from  rank  and  command," 
or  "  from  rank  and  pay,"  and  the  like.  The  sentence  should  also  be 
explicit  as  to  the  duration  of  the  suspension.  "  In  rare  cases  the  form  '  to 
be  suspended  from  the  service  '  has  been  employed  in  the  sentence.  Such 
a  su.-pension  is  equivalent  in  substance  to  a  suspension  from  rank.  A  still 
rarer  form,  '  to  be  suspended  from  duty,'  has  been  deemed  to  be  practically 
equivalent  to  a  sentence  of  suspension  from  command.'  These  forms  are 
now  rarely  resorted  to."  ' 

Effects. — Like  dismissal,  suspension  takes  effect  upon  and  from  notice  of 
the  approval  of  the  sentence  officially  communicated  to  the  officer,  either  by 
the  promulgation  of  the  same  at  his  station,  or,  where  he  is  absent  therefrom 
by  authority,  by  the  delivery  to  him  of  a  copy  of  the  order  of  approval  or 
other  form  of  official  personal  notification  of  the  fact  of  such  approval.^ 

The  effect  of  a  suspension  from  rank  (besides  detaching  the  officer  from 
the  performance  of  the  duties  incident  to  his  rank)  is  to  deprive  him  of  any 
right  of  promotion  to  a  vacancy  in  a  higher  grade  occurring  pending  the 
term  of  suspension,  and  which  he  would  have  been  entitled  to  receive  by 
virtue  of  seniority  had  he  not  been  suspended;  such  rigiit  accruing  to  the 
officer  next  in  rank.  But  no  such  loss  of  promotion  is  incident  to  a  mere 
suspension  from  command." 

It  is  further  the  effect  of  a  suspension  from  rank  that  the  officer  loses  for 
the  time  the  minor  lights  and  privileges  of  priority  and  precedence  annexed 
to  rank  or  command.  Among  these  is  the  riglit  to  select  quarters  relatively 
to  other  officers.  And  where  quarters  are  to  be  selected  by  several  officers, 
one  of  whom  is  under  sentence  of  suspension  from  rank,  the  suspended  officer 
necessarily  has  the  last  choice.  Or  rather  he  has  no  choice,  but  quarters  are 
assigned  him  by  the  commander;  for,  being  still  an  officer  of  the  Army, 
though  Avithout  rank,  he  is  entitled  to  some  quarters.  An  officer  sentenced 
to  be  suspended  from  rank  could  not,  however,  because  of  such  suspen- 
sion alone,  be  deprived  of  quarters  previously  duly  selected,  and  occupied 
at  the  time  of  the  suspension;  such  a  sentence  not  affecting  a  right  pre- 
viously accrued  and  vested.'' 

Where,  however,  the  suspension  is  in  terms  extended  by  the  sentence  to 
pay,  the  pay  is  forfeited  absolutely,  not  merely  withheld.     And  all  the  pay 

'  Suspension /rom  duty.  !is  distinijiiislied  from  suspension  from  rank,  is  a  recognized 
punislmient  in  the  narnL  service.  Navy  Regulati()i;s.  Article  ]7")0:  Hnrwood,  134-5. 
The  form  'to  he  siLspended  from  rank  and  duty"  occurs  iu  G.  C.  M.  O.  19  of 
1885. 

•■'Diir.  J.  A  G.n.,  733,  par.  13. 

*  Ibid.,  782   par    14. 

*  Ibid.,  TM).  ]y.\r.  3. 

^  Dig.  J.  A.  Gen.,  730,  par.  5. 


THE  ARTICLES   OF   WAR.  531 

is  forfeited  xinless  otherwise  expressly  indicated  in  the  sentence.  Tlie  for- 
feiture imposed  by  a  sentence  of  suspension  from  rank. (or  command)  and 
pay,  for  a  designated  term,  is  a  forfeiture  of  pay  for  tliat  specific  term, 
the  suspension  of  the  rank  and  tliat  of  the  pay  being  coincident.  Under 
sucli  a  sentence  the  officer  cannot  legally  be  deprived  of  pay  due  for  a  period 
prior  to  the  suspension.' 

A  suspension  from  rank  does  not  affect  the  right  of  the  otKcer  to  his 
ullice.  Jle  retains  the  ollice,  as  before,  and,  as  an  officer,  remains  subject 
to  military  control,  as  well  as  to  the  jurisdiction  of  a  court-martial  for  any 
military  offense  committed  pending  the  term  of  suspension.' 

Suspension  from  rank  does  not,  liowever,  deprive  the  officer  of  the  right 
to  rise  in  files  in  his  grade — upon  the  promotion,  for  example,  of  tlie  senior 
officer  of  such  grade.  The  number  of  an  officer  in  the  list  of  liis  grade  is 
not  an  incident  of  liis  rank,  but  of  his  appointment  to  office  as  conferred  and 
dated,  and,  as  we  have  seen,  suspension  does  not  affect  the  office.  .More- 
over loss  of  files  is  a  continuing  punishment,  and  if  held  to  be  involved  in 
suspension  from  rank  the  result  would  1)6  that,  for  an  indefinite  period  after 
the  term  of  suspension  had  expired,  the  officer  would  remain  under  punish- 
ment, the  sentence  imposed  by  the  court  being  thus  added  to  in  execution,  ■ 
contrary  to  a  well-known  jirinciple  of  military  law.' 

A  sentence  of  susjiension  from  rank  and  pay  does  not  affect  the  right  of 
the  officer  to  the  allowances  which  are  no  part  of  his  pay^ — as  the  allowance 
for  rent  of  quarters,  as  also  the  allowance  for  fuel  or,  rather,  the  right  to 
I)urchase  fuel  at  a  reduced  rate.^ 

Under  existing  usage  (1897)  an  officer  suspended,  by  sentence,  from  rank 
and  command  is  deemed  entitled  to  retain  his  quarters.  But  such  rule 
may  in  some  cases  work  a  considerable  inconvenience  as  well  as  prejudice 
to  discipline;  as  where,  for  example,  the  suspended  officer  is  a  post  com- 
mander  and   continues,   pending   the  term    of   his   suspension   and   while 


'  Ihid.,  731,  par.  8.  Where  an  officer  wa.s  sentenced  to  su.spcnsion  from  rank  and  pay 
for  si.\  months,  held  thai  his  entire  pa^'  for  those  months  was  absolutely  forfeited  not- 
withstanding  thai  the  pay  of  otUcers  of  his  grade  was  increased  by  statute  pending  the 
term.     Ibid. 

Suspension  does  not  affect  pay  unless  e.vpressly  forfeited  in  the  sentence.  Nor  does 
a  commutation  of  dismissal  to  suspension  affect' |>ay.  Thus  where  a  sentence  of  di.*- 
raissal  of  a  cadet  was  commuted  to  suspension  for  one  year,  held  that  he  was  entitled  to 
full  |»ay  during  suspension.     See  note,  5,  p.,  529,  ante). 

Suspension  from  rank  or  command  iloes  not  involve  a  loss  or  authorize  a  stoppage  of 
pay  for  tiie  jieriod  of  susju-nsion.*  Pay  cannot  l)e  forfeited  by  implication.  Unless, 
therefore,  the  sentence  imposes  a  suspension  from  rank  (or  command)  "and  pay,'"  or  in 
terms  to  that  effect,  the  siispen<led  ollicer  remains  a>^  much  entitled  to  his  pay  as  if  he  had 
not  been  suspended  at  all,  and  to  require  him  to  forfeit  any  pay  would  be  adding  to  tJu 
punixhmetit  and  illegal.     Ibid.,  par.  7. 

»  Ibid.,  729,  par.  2.     See.  also,  5  Opin.  Att.Gen.,  740;  6  idem,  715. 

»  Ibid.,  7;!().  par.  4. 

*  McNairhten.  27. 

'  Dig.  J.  A.  Geu.,  731,  par.  9. 

*4  Opin.  Att.Gen..  44-1;  6  id..  203. 


532  MILITARY  LAW. 

another  officer  has  succeeded  him  as  commander,  to  occupj  the  proper  com- 
manding officer's  quarters.  The  adoption  of  an  army  regulation  prescribing 
that  an  officer  in  such  a  status  shall  not  be  entitled  to  retain  or  to  select 
quarters  by  virtue  of  rank,  ))ut  shall  have  any  quarters  assigned  him  that  are 
available  at  his  late  station  or  elsewhere,  has  been  advised  as  desirable.' 

Status;  Termination. — Suspension  not  divesting  the  officer  of  his  office 
or  commission,  but  simply  holding  in  abeyance  the  rights  and  functions 
attached  to  his  rank  or  command,  he  properly  reverts,  when  the  term  of  the 
punishment  is  completed,  to  his  former  rank  and  the  command  attached 
thereto,  and  continues  to  hold  and  exercise  the  same  as  before  his  arrest  or 

trial. - 

Suspension  from  rank  does  not  involve  a  status  of  confinement  or  arrest. 
In  sentencing  an  officer  to  be  suspended  from  rank,  it  is  not  unusual  for  the 
court  to  require  that  he  be  confined  during  the  term  of  suspension  to  his 
proper  station  or  that  of  his  company  or  regiment,  and  that  the  sentence  be 
executed  there.  Where  this  is  not  done,  while  the  suspended  officer  is  not 
entitled  to  a  leave  of  absence  it  cannot  affect  the  execution  of  his  sentence 
to  grant  him  one,  and  leaves  of  absence  are  not  unfrequently  granted  under 
such  circumstances.' 

The  status  of  an  officer  under  suspension  is  the  same  whether  such  sus- 
pension has  been  imposed  directly  by  sentence  or  by  way  of  commutation  for 
a  more  severe  punishment.  Thus  where  a  sentence  of  dismissal  was  com- 
muted to  suspension  from  rank  on  half-pay  for  one  year,  it  has  been  held 
that  the  officer,  while  forfeiting  the  rights  and  privileges  of  rank  and  com- 
mand during  such  term,  was  yet  amenable  to  trial  by  court-martial  for  a 
military  offense  committed  pending  the  same." 

Where  an  officer,  while  under  a  sentence  of  suspension,  is  ordered  by  the 
commander  who  approved  the  sentence,  or  some  higher  competent  authority, 
to  resume  his  command  or  the  performance  of  his  regular  military  duty, 
such  order  will  in  general  operate  as  a  constructive  remission  of  the  punish- 
ment and  thus  terminate  the  suspension." 

Loss  of  Rank  or  Files. — ^A  form  of  punishment  similar  in  its  effects  to 
suspension  has  already  been  discussed."     The  effect  of  this  punishment  is  to 


'  Ibid  ,  733,  par.  17.  Under  I  he  ruling  of  tlie  Secretary  of  War,  as  published  in  Circ. 
No.  3  (H.  A.l',  188S.  an  officer  under  suspension,  hut,  not  refpiired  by  his  sentence  lobe 
"  confined  to  tlie  limits  of  his  po.st."  is  not  entitled  to  forage  for  his  horse  or  horses 
during  the  term  of  his  suspension.     Ibid.,  par.   18. 

-  Ibid.,  par.  16.  Sullivan,  who  (p.  88)  traces  this  punishment  to  "  the  ecclesiastical 
jurisdiction  which  admitted  su.spension  as  a  minor  excommunication,"  adds,  in  regard 
to  the  officer  sentenced  :  "  At  the  expiration  of  the  term  of  suspension  he  becomes  a 
perfect  man  again." 

'  Ibid.,  730,  par.  6. 

*  Ibid.,  par.  10. 

5  Ibid.,  732.  par.  11.     See  McNaghten,  22. 

«  See  the  chapter  entitled  Punishments,  ante. 


THE  ARTICLES  OF   WAR.  533 

deprive  the  officer  of  such  relative  riglit  of  promotion,  as  well  as  right  of 
command,  and  of  precedence  on  courts  or  boards  and  in  selecting  quarters, 
etc.,  as  he  would  have  had  had  he  remained  at  hi.s  original  number.  Such 
effect  continues  till  the  sentence  is  remitted.  But  this  punishment  cannot 
per  se  affect  the  officer's  right  to  pay.' 

Article  102.  No  person  shall  he  tried  a  second  time  for  the  same  of  ease. 

This  re(inirement,  as  it  affects  the  question  of  jurisdiction,  has  formed  a 
part  of  the  Mutiny  Act  rather  than  of  tlie  Articles  of  War.  The  first  limi- 
tation in  tlie  prosecution  of  military  offenses  was  that  contained  in  the 
Mutiny  Act  of  1760."  To  constitute  a  bar  to  trial,  the  proceedings  must  (in 
England  as  well  as  in  the  United  States)  have  been  carried  to  a  conviction 
or  acquittal,  that  is,  there  must  have  been  a  trial,  not  a  mere  placing  in 
jeopardy,  as  is  required  in  the  corresponding  constitutional  limitation.  The 
provision  appeared  for  the  first  time  in  the  American  Articles  as  the  last 
clause  of  the  Articles  of  1806;  it  appeared  as  a  separate  Article  as  No.  102 
of  the  Articles  of  1874. 

The  Constitution  declares  that  "  no  joerson  sliall  be  subjected  for  the 
same  offense  to  be  twice  put  in  jeopardy  of  life  or  limb."  '  The  United 
States  courts,  in  treating  the  term  "put  in  jeopardy  "  as  meaning  practically 
tried,  hold  that  the  "jeopardy"  indicated  "can  be  interpreted  to  mean 
nothing  short  of  the  acquittal  or  conviction  of  the  prisoner  and  the  judg- 
ment of  the  court  thereon."  *  So  it  has  been  held  that  the  term  "  tried," 
employed  in  this  Article,  meant  duly  prosecuted,  before  a  court-7nartial,  to  a 
final  conviction  or  acquittal ;  and  therefore  that  an  officer  or  soldier,  after 
having  been  duly  convicted  or  acquitted  by  such  a  court,  could  not  be  sub- 
jected to  a  second  military  trial  for  the  same  offense,  except  hv  and  upon  his 
own  waiver  and  consent.  For  that  the  accused  may  waive  objection  to  a 
second  trial  was  held  by  Attorney-General  Wirt  in  1818,'  and  has  since  been 
regarded  as  settled  law.* 

Where  the  accused  has  been  once  duly  convicted  or  acquitted  he  has 
been  "  tried  "  in  the  sense  of  the  Article,  and  cannot  be  tried  again,  against 
his  will,  though  no  action  whatever  be  taken  upon  tlie  proceedings  by  the 
reviewing  authority,  or  though  the  proceedings,  findings  (and  sentence,  if 
any)  be  wholly  disapproved  by  him.'  It  is  immaterial  whether  the  former 
conviction  or  acquittal  is  approved  or  disapproved.* 

'  Die:.  J.  A.  Gen.,  483,  par.  3. 
'  1   Geo.  I.,  ch.  6,  sec.  71. 
'  Article  V  of  Amendments. 

♦  United  States  r«.   Haskell,  4  Wash.  C.  C,  409.      And  see  United  States  t.i  Shoe- 
maker,  2  McLean,  114:  United  States  rs.  Gilbert,  2  Sumner,  19;  United  States  ts.  Perez 
9  Wheaton,  579;  1  Opins.  Alt. -Gen.,  294.      But  for  a  different  view  see  Cooley,  Consti- 
tutional  Law,  308,  and  cases  cited. 

'  1  Opins.  Att.-Gen.,  233.     And  see,  also,  6  id..  205. 

•  Dig.  J.  A.  Geti.,  118,  par.  1. 

'  Compare  Macomb,  t^  159.  O  Brien,  277;  Rules  for  the  Bombay  Army  45 
«  Dig.  J.  A,  Gen.,  119,  par.  5. 


534  MILITARY  LAW. 

Where  an  officer  or  soldier  has  been  duly  acquitted  or  convicted  of  a 
specific  offense,  he  cannot,  against  liis  consent,  be  brought  to  trial  for  a 
minor  offense  included  therein,  and  an  acquittal  or  conviction  of  which  was 
necessarily  involved  in  the  finding  upon  the  original  charge.  Thus  a  party 
convicted  or  acquitted  of  a  desertion  cannot  afterwards  be  brought  to  trial 
for  an  absence  without  leave  committed  in  and  by  the  same  act.' 

Where  an  officer  or  soldier,  having  been  acquitted  or  convicted  of  a 
criminal  offense  by  a  civil  court,  is  brought  to  trial  by  a  court-martial  for  a 
militarv  offense  involved  in  his  crimiiud  act,  he  cannot  plead  "a  former 
trial"  in  the  sense  of  this  Article.  .So  where  the  trial  for  the  military 
offense  has  preceded,  he  cannot  plead  autrefois  acquit  or  convict  to  an 
indictment  for  the  civil  crime  committed  in  and  by  the  same  act.'' 

There  cannot,  in  view  of  this  Article,  be  a  second  trial  where  the  offense 
is  really  the  same,  though  it  may  be  charged  under  a  different  description 
and  under  a  different  Article  of  War.  Thus  where  the  Government  elects 
to  try  a  soldier  under  the  32d  Article  for  "absence  without  leave,"  or  under 
the  42d  for  "  lying  out  of  quarters,"  and  the  testimony  introduced  develops 
the  fact  that  the  offense  was  desertion,  the  accused,  after  an  acquittal  or 
conviction,  cannot  legally  be  brought  a  second  time  to  trial  for  the  same 
absence  charged  as  a  desertion.' 

That  an  accused  has  been,  in  the  opinion  of  the  reviewing  authority, 
inadequately  sentenced,  either  by  a  general  or  an  inferior   court,   cannot 


'  T>W.  J.  A.  Gea.,  118.  par.  2.  Held  that  there  was  no  "  second  "  trial,  in  the  sense  of 
the  ArtTcle,  in  the  following  cases,  viz. :  where  the  party,  after  being  arraigned  or  tried 
before  a  court  which  was  illegally  constituted  or  composed,  or  was  without  jurisdiction, 
was  ao-ain  brought  to  trial  before  a  competent  tribunal;  where  the  accused,  having  been 
arrai.<nied  upon  and  having  pleaded  to  certain  charges,  was  rearraigned  upon  a  new  set  of 
charges  substituted  for  the  others,  which  were  withdrawn;  where  one  of  several  distinct 
charo-es  upon  which  the  accused  had  been  arraigned  was  withdrawn  pending  the  trial,  and 
the  accused,  after  a  trial  and  finding  by  the  court  upon  the  other  charges,  was  brought  to 
trial  anew  upon  the  charge  thus  withdrawn  ;  where,  after  proceedings  commenced  but 
discontinued  without  a  finding,  the  accused  was  brought  to  trial  anew  upon  the  same 
charge ;  where,  after  having  been  acquitted  or  convicted  upon  a  certain  charge  which  did 
not  in  fact  state  the  real  offense  committed,  the  accused  Vv^as  brought  to  trial  for  the  same 
act,  but  upon  a  charge  setting  forth  the  true  offense;  where  the  accused  was  brought  to 
trial  after  having  had  his  case  fully  investigated  by  a  different  court,  which,  however, 
failed  to  agree  in  a  finding  and  was  consequently  dissolved  ;*  where  the  first  court  was 
dissolved  because  reduced  below  five  members  by  the  casualties  of  the  service  pending 
the  trial  ;  where,  foi  any  cause,  there  was  a  "  mistrial, ".or  the  trial  first  entered  upon 
was  terminated,  or  the  court  dissolved,  at  any  stage  of  the  proceedings  before  a  final 
acquittal  or  conviction.     Ibid.,  par.  3. 

2  Dig.  .J.  A.  Gen.,  119,  par.  4.  See,  also,  0  Opin.  Att.-Gen.,  413,  506.  Where  an 
officer  who  had  killed  a  superior  officer  in  an  altercation  at  a  military  post  was  brought 
to  trial  before  a  civil  court  on  a  charge  of  murder  and  acquitted,  and  was  subse- 
quently arraigned  before  a  court-martial  for  the  offense  against  military  discipline 
involved  in  his  criminal  act,  luid  that  a  plea  of  former  trial  interposed  by  him  was 
properly  overruled  by  the  court.     Ibid.,  par.  7. 

*  Ibid.,  120,  par,  9. 


*  See  U.  S.  vs.  Perez,  9  Wheaton,  579. 


Till':  ARTICLES   OF    WAR.  535 

except  his  case  from  tiie  application  of  this  Article;  thongh  insafticiently 
punished,  he  cannot  be  tried  again  for  the  same  offense.' 

Article  103.  No  person  shall  be  liable  to  be  fried  and  2)unished  by  a 
general  court-martial  for  any  offense  icJiich  appears  to  have  been  committed 
wore  than  tu:o  years  before  the  issuiny  of  the  order  for  such  trial,  unless,  by 
reason  of  haviny  absented  himself,  or  of  some  other  manifest  impediment,  he 
shall  not  have  been  amenable  to  justice  within  that  period. 

The  first  statute  of  limitation  upon  the  prosecution  of  military  offenses 
appeared  in  the  Mutiny  Act  for  the  year  ITGO."  The  period  of  limitation 
was  fixed  at  three  years,  and  the  statute  applied  to  all  military  offenses  except 
desertion.  The  first  statutory  limitation  upon  the  prosecution  of  military 
offenses  in  the  United  States  appeared  as  No.  88  of  tlie  Articles  of  1800. 
The  time  within  which  a  prosecution  could  be  brought  was  fixed  at  two  years, 
instead  of  three  as  in  the  corresponding  l^ritish  statute,  possibly  from  analogy 
to  the  similar  limitation  in  the  practice  of  the  criminal  courts  of  the  United 
States. 

By  the  Act  of  April  11,  1890,'  it  was  provided  that  "  no  person  shall  be 
tried  or  punished  by  a  court-martial  for  desertion  in  time  of  peace  and  not 
in  the  face  of  an  enemy,  committed  more  than  two  years  before  the  arraign- 
ment of  such  person  for  sucli  offense,  unless  he  shall  meanwhile  have 
absented  himself  from  the  United  States,  in  which  case  the  time  of  his 
absence  shall  be  excluded  in  computing  the  period  of  the  limitation,  pro- 
vided that  such  limitation  shall  not  begin  until  the  end  of  the  term  for 
which  said  person  was  mustered  into  the  service." 

In  view  of  this  Article  it  is  the  duty  of  the  Government  to  prosecute  an 
offender  within  a  reasonable  time  after  the  commission  of  the  offense.*  The 
limitation,  however,  is  properly  a  matter  of  defense  to  be  specially  pleaded 
and  proved.*  By  pleading  the  general  issue  the  accused  is  assumed  to  waive 
the  right  to  plead  the  limitation  by  a  special  plea  in  bar.  But  under  a  plea 
of  not  guilty  the  limitation  may  be  taken  advantage  of  by  evidence  showing 
that  it  has  taken  effect. ° 

The  prohibition  of  the  Article  relates  only  to  prosecutions  before  general 

'  Dig.  J.  A.  Geu.,  120,  par.  6.  A  soldier  was  convicted  of  "  manslautrhter,"  but  the 
findinsrs  and  sentence  were  disapproved.  He  was  then  bioiicht  to  trial  on  a  diaige  of 
iiintiny,  as  cnmniitted  on  the  occasion  of  the  homicide,  tlie  latter  being  alluded  to  in  the 
specitication  as  an  incidental  circumstance  of  aggravation,  and  was  found  guilty  and  sen- 
tenced, llelil  that  the  accused  was  not,  in  the  sense  of  this  Article,  '•  tried  a  second  time 
for  the  same  ollense,"  the  mutiny  not  consisting  in  the  act  of  homicide,  but  constituting 
a  distinct  offense. 

'1  Geo.  I.,  ch  6,  sec.  71.  For  a  discussion  of  statutes  of  limitatioo  see  the  title 
PleaK  in  the  chapter  entitled  TuK  Incidents  of  tuk  Tki.^l. 

'  26  Statutes  at  Large,  04. 

M)i«r.  J.  A.  Gen.,  124.  par.  11. 

5  In  re  Boiiart,  2  Sawyer.  397;  In  re  White,  17  Fed.,  723:  In  re  Davison,  21  Fed.,  618; 
In  re  Zimmerman.  30  Fed.,  176;  G.  O.  22  of  1893.  And  compare  U.  S.  vt.  Cooke,  17 
Wallace,  168. 

•  Dig.  J.  A.  Gen.,  124,  par.  12. 


530  MILirART  LAW. 

courts-martial;  it  does  not  apply  to  trials  by  inferior  courts.  So  courts  of 
inquiry  may  be  convened  without  regard  to  the  period  which  has  elapsed 
since  the  date  or  dates  of  the  act  or  acts  to  be  investigated.'  Nor  does  the 
rule  of  limitation  apply  to  the  hearing  of  complaints  by  regimental  courts 
under  Article  30." 

The  liability  to  trial  after  discharge,  imposed  by  the  last  clause  of  Article 
60,  has  been  held  subject  to  the  limitation  prescribed  in  Article  103.^  And 
so  held  as  to  the  liability  to  trial  after  the  expiration  of  the  term  of  enlist- 
ment, under  Article  •iS.'' 

By  the  absence  referred  to  in  the  original  Article,  in  the  clause  "  unless 
by  reason  of  having  absented  himself,"  is  believed  to  be  intended,  not  neces- 
sarily an  absence  from  the  United  States,  but  an  absence  by  reason  of  a 
"  fleeing  from  justice,"  analogous  to  that  specified  in  Section  1045,  Revised 
Statutes,  which  has  been  held  to  mean  leaving  one's  home,  residence,  or 
known  abode  within  the  district,  or  concealing  one's  self  therein,  with  intent 
to  avoid  detection  or  punishment  for  the  offense  against  the  United  States.* 
Thus  it  has  been  held  that,  in  a  case  other  than  desertion,  it  was  not  essen- 
tial for  the  prosecution  to  be  prepared  to  prove  that  the  accused  had  been 
beyond  the  territorial  jurisdiction  of  the  United  States  in  order  to  save  the 
case  from  the  operation  of  the  limitation." 

■  6  Opin.  Att.-Gen.,  239. 

■  Dig.  J.  A.  Gen.,  124,  par.  10.  See  Article  30,  supi'a.  For  application  of  the  terms 
of  the  Article  to  arrests,  see  Dig.  J.  A.  Geu.,  123,  par.  7. 

"  See  Article  60,  supra. 

*  Dig.  J.  A.  Gen.,  124,  par.  9;  14  Opin.  Att.-Gen.,  52. 

'  U.  S.  vs.  O'Brien.  2  Dillon,  381;  U.  S.  vs.  White,  5  Cr.  C.  C,  38,  73;  Gould  & 
Tucker,  Rev.  Stat.,  349. 

'Dig.  .J.  A.  Gen.,  125,  par.  14.  It  is  quite  clear  that  any  person  who  takes  himself 
ont  of  the  jurisdiction  with  the  intention  of  avoiding  being  l)rought  to  justice  for  a 
particular  olfense  can  have  no  benefit  of  the  limitation,  at  least  when  prosecuted  for 
that  olleuse  in  a  court  of  the  United  States.  *  *  *  A  person  fleeing  from  the  justice 
of  his  country  is  not  supposed  to  have  in  mind  the  object  of  avoiding  the  process  of  a 
particular  court,  or  the  question  whether  he  is  amenable  to  the  justice  of  a  nation,  or  of 
the  Suite,  or  of  both.  Proof  of  a  specific  intent  to  avoid  either  could  seldom  be  had, 
and  to  make  it  an  essential  requisite  would  defeat  the  whole  object  of  the  provision  in 
question.  Street  vs.  United  States,  IfiO  U.  S.,  128;  United  States  vs.  Smith,  4  Day,  121, 
125;  Roberts  vs.  Reilly,  116  U.  S..  80,  97. 

The  mere  fact  that  the  offense  was  concealed  by  tlie  accused  and  remained  unknown 
to  the  military  authorities  for  more  than  two  years  constitutes  no  "  impediment ''  in  the 
sense  of  the  Article.     Dig.  Opin.  .J.  A.  Gen.,  123,  par.  5. 

A  mere  allegation  in  a  specification  to  the  effect  that  the  whereal)outs  of  the  offender 
was  unknown  to  the  military  authorities  during  the  interval  of  more  than  two  years 
which  had  elap.sed  since  the  offense  is  not  a  good  averment  of  a  "  manifest  impediment  " 
in  the  sense  of  the  Article.     Ibid  ,  par.  6. 

A  court-martial,  in  a  case  of  an  offense  other  than  desertion,  sustained  a  plea  of  the 
statute  of  limitations  in  bar  of  trial  for  tlie  reason  that  the  judge-advocate  could  produce 
no  evidence  to  show  that  the  accused  was  not  within  the  territorial  jurisdiction  of  tlie 
United  States  during  his  aV>3ence.  Held  that  such  sliowing  was  not  necessary,  and  that 
it  was  sufficient  that  the  absence  should  be  any  unauthorized  absence  from  the  military 
service  whereby  the  absentee  evades  and  for  the  time  escapes  trial.  This  construction 
of  the  term  "absented  himself"  in  the  Article  corresponds  to  that  placed  on  the  words 
"  fleeing. from  justice ''  as  used  in  the  statutes  of  the  United  States  to  designate  those  whom 
the  statutes  of  limitation  for  the  prosecution  of  crimes  do  not  protect.    Ibid.,  125,  par.  15. 


THE  ARTICLES  OF   WAR.  537 

Aeticle  104.  No  sentence  of  a  courl-inarlial  shall  be  carried  into  etecu- 
iion  until  the  same  shall  have  been  aj)proved  by  the  officer  ordering  the  court, 
or  by  the  officer  commanding  for  the  lime  being. 

The  re(iiiireinent  tliiit  u  court-murtiiil  sentence  shall  be  made  operative 
by  the  approval  or  conllrmatiou  of  a  reviewing  authority  is  relatively  recent 
in  tlie  procedure  of  military  tribunals.  The  OUth  of  the  Prince  Kupert 
Articles  contained  the  requirement  that  "  when  sentence  is  to  be  given,  tiie 
President  sliall  pronounce  it;  and  after  that  the  sentence  is  pronounced,  the 
Provost-marslial  shall  have  warrant  to  cause  execution  to  be  done  according 
the  sentence." 

Later  Articles  vest  the  power  to  review  and  confirm  proceedings,  find- 
ings, and  sentences  in  the  sovereign,  or  the  officer  commanding-iu-chief,  or  in 
certain  cases  in  some  person  duly  authorized  by  the  sovereign  under  his  sign 
manual;  such  delegation  of  authority  being  in  some  cases  final,  and  in 
otliers  provisional  only,  until  the  directions  of  the  sovereign  could  be 
known.'  This  is  the  case  in  the  British  Articles  of  17G5  and  1774,  which 
contain  the  requirement  that  "  no  sentence  of  a  general  Court  Martial  shall 
be  put  in  execution  till  after  a  report  shall  be  made  of  the  whole  proceedings 
to  Us,  or  to  Our  Commander  in  Chief,  or  some  other  Person  duly  authorized 
by  Us,  under  Our  Sign  Manual  to  confirm  the  same;  and  Our  or  his  Direc- 
tions shall  be  signified  thereupon,"  etc.  Article  8,  Section  14,  of  the 
American  Code  of  1776  required  the  proceedings  to  be  reported  "  to  Con- 
gress, or  to  the  general  or  commander-in-chief  of  the  forces  of  the  United 
States,  and  their  or  his  directions  be  signified  thereupon."  Article  2,  Sec- 
tion 14,  of  the  Resolution  of  Congress  of  May  31,  1786,  required  the  sen- 
tences involving  death  or  the  dismissal  of  a  commissioned  officer  to  be  laid 
"  before  Congress  for  their  confirmation  or  disapproval,  and  their  orders  in 
the  case."  All  other  sentences  were  to  "be  confirmed  by  the  officer  order- 
ing the  court  to  assemble,  or  the  commanding  officer  for  the  time  being,  as 
the  case  may  be."  '  Article  65  of  the  Code  of  1806  vested  the  power  of 
review  in  the  officer  appointing  the  court  except  in  the  cases  specified  in  the 
last  clause  of  the  Article  which  now  constitutes  the  105th  Article  of  War. 
The  first  clause  of  No.  65  of  the  Articles  of  1806  forms  the  104th  Article  of 
the  Code  of  1874;  the  second  clause  having  been  re-enacted  as  Article  105 
of  the  same  Code. 

The  Reviewing  Authority. — This  term  is  employed  in  military  parlance' 
to  designate  the  officer  whose  province  and  duty  it  is  to  take  action  upon — 
approve  or  disapprove,  etc. — the  proceedings  of  a  court-martial  after  the 

'  The  practice  of  such  delegation  seems  to  bave  originated  with  William  ITT.  on 
account  of  liis  occasional  absences  from  the  kingdom.  See  I.  Clode,  Mil.  Forces. 
Appendix,  pp.  502,  503. 

'  There  are  instances  in  which  this  power  was  exercised  by  Consrress.  See  .3  Jour- 
nals of  Cong..  37,  144,  158,  386.  714  ;  4  Mi.,  2G8.  367,  368  ;  Wlnthrop,  632.  note  4. 

'  Tlie  term  is  also  employed  in  Section  1228,  Revised  Statutes. 


538  MILITARY  LAW. 

same  are  terminated,  and  when  the  record  is  transmitted  to  him  for  such 
action.  This  officer  is  ordinarily  the  commander  who  has  convened  the 
court.  In  liis  absence,  however,  or  where  the  command  has  been  otherwise 
changed,  liis  successor  in  command  or,  in  the  language  of  Articles  104  and 
109,  "  the  officer  commanding  for  the  time  being,"  is  invested  (by  those 
Articles)  with  the  same  authority  to  pass  upon  the  proceedings  and  order 
the  execution  of  the  sentence  in  a  case  of  conviction.' 

In  cases,  however,  of  sentences  of  dismissal  and  of  death  imposed  in  time 
of  peace,  and  of  some  death-sentences  adjudged  in  time  of  war,  as  also  of  all 
sentences  "  respecting  general  officers,"  while  the  convening  officer  (or  his 
successor)  is  the  original  reviewing  authority,  with  the  same  power  to 
approve  or  disapprove  as  in  other  cases,  yet,  inasmuch  as  it  is  prescribed  by 
Articles  105,  lOG,  108,  and  109  that  the  sentence  shall  not  be  executed  with- 
out the  confirmation  of  the  President,  the  latter  becomes  in  these  cases 
the  final  reviewing  officer,  when,  the  sentence  having  been  approved  by 
the  commander  (for,  if  disapproved  by  him,  there  is  nothing  left  to  be 
acted  upon  by  the  superior),  the  record  is  transmitted  to  him  for  his 
action. ' 

A  similar  division  of  the  reviewing  function  exists  in  cases  in  which  sen- 
tences are  approved,  but  the  execution  of  the  same  is  suspended,  and  the 
question  of  their  execution  referred  to  the  President,  under  Article  111. 
The  same  function  is  also  shared  between  inferior  and  superior  commanders, 
nnder  Article  107,  in  cases  in  which  sentences  are  imposed  by  division  or 
separate  brigade  courts;  so,  under  Article  110,  in  cases  of  sentences 
adjudged  by  field-officers'  courts  in  time  of  war.' 

Where  a  general  court-martial  is  convened  directly  by  the  President  as 
Commander-in-Chief,  he  is  of  course  both  the  original  and  final  reviewing 
authority.' 

Action  on  Proceedings. — This  Article  is  properly  to  be  complied  with  by 
an  approval  of  tlie  sentence  (where  the  same  is  approved  in  fact)  by  "  the 
officer  ordering  the  court,"  etc.,  although,  as  in  a  case  of  a  sentence  of  dis- 
missal in  time  of  peace,  he  may  not  be  empowered  finally  to  confirm  and 
give  effect  to  the  sentence.  His  approval  is  required  as  showing  affirmatively 
that  he  does  not  disapprove  the  sentence,  as  he  is  authorized  to  do.' 

Wiiile  approval  gives  life  and  operation  to  proceedings  or  sentence,  dis- 
approval, on  the  other  hand,  quite  nullifies  the  same.  A  disapproval  of  the 
proceedings  of  a  court-martial  by  the  legal  reviewing  authority  is  not  a  mere 
expression  of  disappro})ation,  but  a  final  determinate  act  putting  an  end  to 
such  proceedings  in  the  particular  case,  and  rendering  them  entirely  nuga- 
tory and   inoperative;   and   the  legal   effect  of  a  disapproval   is  the  same 

'  Di<z-,  .T.  A.  Gen.,  670,  par.  1.  See,  also,  the  chapter  entitled  The  Reviewing 
Authority. 

»  Ihid.,  126.  par.  1. 


THE  ARTICLES  OF   WAR.  539 

wliether  or  not  the  officer  disapproving  is  authorize'!  finally  to  confirm  the 
sentence.  But  to  be  tlnis  operative,  a  (lisai)proval  should  be  express.  As 
frequently  remarked  in  tlie  opinions  of  the  judge-advocate  general,  the  mere 
absence  of  an  approval  is  not  a  disapproval,  nor  can  a  mere  reference  of  tlie 
proceedings  to  a  superior  without  words  of  approval  operate  as  a  disapproval 
of  the  proceedings  or  sentence.'  The  effect  of  tlie  entire  disapproval  of  a 
conviction  or  sentence  is  not  merely  to  annul  tlie  same  as  such,  but  also  to 
prevent  the  accruing  of  any  disability,  forfeiture,  etc.,  which  would  have 
been  incidental  upon  an  a])proval.  A  disajiproval  of  a  conviction  of  a  par- 
ticular offense  also  operates  to  nullify  the  conviction  of  any  lesser  included 
offense  involved  in  the  conviction  of  the  specific  offense  charged." 

The  "Officer  Commanding  for  the  Time  Being."— The  "officer  com- 
manding for  the  time  being,"  indicated  in  this  Article,  is  an  officer  who  has 
permanently  or  temporarily  succeeded  to  the  command  of  the  officer  who 
convened  the  court;  as  where  the  latter  has  been  regularly  relieved  and 
another  officer  assigned  to  the  command,  or  where  the  command  of  the  con- 
vening officer  has  been  discontinued,  and  merged  in  a  larger  or  other  com- 
mand, at  some  time  before  the  proceedings  of  the  court  are  completed  and 
required  to  be  acted  upon.  Thus  where,  under  these  circumstances,  r 
separate  brigade  has  ceased  to  exist  as  a  distinctive  organization  and  been 
merged  in  a  division,  or  a  division  has  been  similarly  merged  in  an  army  or 
department,  the  commander  of  the  division  in  the  one  case  and  of  the  army 
or  department  in  the  other  is  "the  officer  commanding  for  the  time  being," 
in  the  sense  of  the  Article.' 

The  "  officer  commanding  for  the  time  being  "  must,  to  legally  act,  have 
the  necessary  qualifications.  Thus  where  the  sentence  is  one  of  a  general 
court-martial,  this  officer  must  have  the  same  rank  and  status  as  the  conven- 
ing officer  must  have  had  under  the  T2d  Article,  i.e.,  he  must  be  either  a 


'  See  16  Opiiis.  Att.-Geu.,  312,  where  it  is  remarked  that  it  is  not  a  legal  disappi'ovul 
of  a  coDvictiou  or  sentence  for  the  original  rc'viewing  oliicer,  in  forwarding  the  proceed- 
ings for  the  action  of  superior  aullmiity,  to  indorse  upon  the  same  an  opinion  to  the 
effect  thai  the  lindiiig  is  not  sustained  by  the  evidence. 

■^  Dig.  .J.  A.  Gen.,  671,  par.  2.  A  reviewing  officer  cannot  disapprove  a  sentence  and 
then  proceed  to  mitigate  or  commute  the  imnishment,  since,  upon  the  disapproval,  there 
is  notliing  left  in  the  case  upon  whicli  any  .such  action  can  be  based. 

It  is  quite  immaterial  to  the  legal  effect  of  a  disapprov.'il  wiiether  any  re<isons  are 
given  therefor,  or  whether  llie  reasons  given  are  well  foimded  in  fact  or  sufficient  iu 
law.      Ibiil. 

A  disapproval  of  a  sentence  by  the  proper  reviewing  authority  is  "  tantamount  to  an 
acquittal  by  the  court."     13  Opins.  Att.-Gen,  460. 

A  disapproval  of  a  findin<i-  by  the  proper  reviewing  authority  has  the  same  legal 
effect  as  an  acquittal,  and  the  soldier  cannot  be  made  to  suffer  any  of  the  leiral  conse- 
quences of  a  conviction.     Ihid...  675.  par.  9. 

'  Dig.  .1.  A.  Gen.,  127,  par.  5.  So  where,  before  the  proceeiiings  of  a  garri.son  court 
convened  by  a  post  commander  were  completed,  the  post  command  had  ceased  to  exist, 
and  the  command  become  distributed  in  the  department,  hrld  that  the  department  com" 
mander,  as  the  legal  successor  of  the  post  commander,  was  the  proper  authority  to  ap- 
prove the  sentence  under  this  Article.     Ibid. 


540  MILITARY  LAW. 

general  officer  commanding  the  army,  division,  or  separate  department,  or  a 
colonel  commanding  a  department.' 

Record  of  Action  in  Review. — The  approval  of  the  sentence  indicated  by 
this  Article  should  properly  he  of  a  formal  character.  An  indorsement, 
signed  by  the  commander,  of  the  single  word  "  Approved," — a  form  not 
nnfrequently  eniployed  during  the  late  war, — though  strictly  sufficient  in 
law,  is  irregular  and  objectionable.^ 

Limits  of  Reviewing  Authority. — The  authority  of  a  military  commander 
as  reviewing  officer  is  limited  to  taking  action  upon  the  proceedings  and  sen- 
tence (if  any)  by  approving  or  disapproving  the  same  (wholly  or  in  part), 
and  directing  the  execution  of  the  sentence;  and  to  the  incidental  function, 
as  conferred  by  Article  112,  of  pardoning  or  mitigating  the  punishments 
which  have  been  approved  by  him.  Action  not  included  within  these 
powers  he  is  not  authorized  to  take.  Thus  he  cannot  himself  correct  the 
record  of  the  court,  by  striking  out  any  part  of  the  finding  or  sentence  or 
otherwise,  nor  can  he  in  general  change  the  order  in  which  different  penal- 
ties are  adjudged  by  the  court  to  be  suffered,  nor  can  he  add  to  the  punish- 
ment imposed  by  the  court  though  deemed  by  him  quite  inadequate   to  the 

offense.' 

It  is  equally  beyond  the  power  of  the  reviewing  oflicer  to  change  a  find- 
ing by  his  own  action.  Thus  where,  in  a  case  of  conviction  of  desertion,  the 
reviewing  authority  approved  "so  much  only  of  the  finding  of  guilty  of 
desertion  as  convicted  the  accused  of  absence  without  leave,"  it  has  been 
held  that  he  had  thus  substituted  a  finding  of  his  own  for  that  of  the  court, 
and  that  his  action  was  unauthorized.^ 

Reasons  for  Disapproval. — While  it  is  not  legally  essential  to  a  dis- 
approval that  the  reasons  therefor  should  be  stated,  a  reviewing  officer  may 
in  general  specify  the  reasons  for  the  action  taken  by  him  without 
transcending  his  authority.  Thus  where  a  department  commander  dis- 
approved a  sentence  as  inadequate,  and  in  stating  his  grounds  for  so  doing 
commented  unfavorably  upon  the  conduct  of  the  accused  as  indicated  by  the 

'  Dig.  J.  A.  Gen.,  127,  par.  7.  Where  a  departmeut  coniinaud  was  discontinued  with- 
out being  transferred  to  or  included  in  any  other  specific  command,  held  that  the  gen- 
eral in  command  of  the  Army  was  "the  officer  commanding  for  the  time  being,"  and  the 
proper  authority  to  act.  under  this  Article  and  the  109th,  upon  the  proceedings  and  sen- 
tence of  a  court  which  had  been  ordered  by  the  department  commander,  but  whose 
judgment  had  not  been  completed  at  the  time  of  the  discontinuance  of  the  command. 

Ibid.,  par.  6  .  ,  , 

*  Ibid.,  126,  par.  2.  So  Jield  that  a  mere  statement,  written  in  or  upon  the  proceed- 
ings, in  transmitting  them  to  the  President,  that  the  record  was  "forwarded"  for  the 
action  of  superior  authority,  was  insufficient  as  not  implying  tlie  requisite  approval 
according  to  the  Article;  and  held  similarly  o{  a  mere  recommendation  that  the  pro- 
ceedings be  approved  by  such  authority.     Ibid. 

«DiL^  J.  A.  Gen.,  672,  par.  B. 

*  Ibid.,  675,  par.  11.  As  has  been  seen,  it  is  within  the  authority  of  a  department 
commander,  as  reviewing  ofhcer,  in  a  case  in  which  a  soldier  of  his  command  has  been 
sentenced  to  confinement  in  a  penitentiary,  to  designate  a  particular  penitentiary  within 
guch  command  as  the  place  of  confinement.     Ibid.,  par.  12. 


TIIK  ARTICLES  OF  WAR.  641 

evidence,  it  was  held  that  auch  comments  were  a  legitimate  explanation  of 
the  action  taken,  and  did  not  constitute  an  adding  to  the  punishment.' 

The  reviewing  authority  should  properly  authenticate  the  action  taken 
by  him  in  any  case  by  subscribing  in  his  own  hand  (adding  his  rank  and 
command,  as  indicating  his  legal  authority  to  act)  the  official  statement  of 
the  same  as  written  in  or  upon  tbe  record.  Impressing  the  signature  by 
means  of  a  stamj)  is  not  favort'd.^ 

Revision  of  Proceedings,  Finding,  or  Sentence  by  the  Court." — "Where 
the  reviewing  oMicer  deems  that  the  proceedings  of.  the  court  are  in  any 
material  particular  erroneous  or  ill  advised,  his  proper  course  in  general  will 
be  to  reconvene  the  court  for  the  purpose  of  liaving  the  defect  corrected,  at 
the  same  time  furnishing  it  with  the  grounds  of  his  opinion.  Thus  if  he 
regards  the  sentence  inadequate,  he  sliould,  in  reassembling  the  court  for  a 
revision  of  the  same,  state  the  reasons  why  he  considers  it  to  be  dispropor- 
tionate to  the  amount  of  criminality  involved  in  the  offense.  But  although 
he  cannot  compel  the  court  to  adopt  his  views  in  regard  to  the  supposed 
defect,  he  may,  in  a  proper  case,  express  liis  formal  disapprobation  of  their 
neglect  to  do  so.' 

Reconsideration  of  Action  by  Reviewing  Officer. — Action  taken  by  a 
reviewing  officer  upon  the  jn'oceedings  and  sentence  of  a  court-martial  may 
be  recalled  and  modified  before  it  is  published  and  the  party  to  be  affected  is 
duly  notified  of  the  same.  After  such  notice  the  action  is  beyond  recall. 
The  power  of  remission^  indeed,  may  be  exercised  so  long  as  any  part  of  the 
punishment  imposed  remains  unexecuted.  But  Avhen  the  final  approval  of 
the  sentence  (or  other  action  taken)  has  been  once  officially  communicated 
to  the  accused,  the  function  and  authority  of  the  reviewing  authority  as  such, 
over  and  respecting  the  same,  is  exhausted  and  cannot  be  revived.     An 

'  Dig.  J.  A.  Geu.,  672,  par.  3. 

'Dig.  .J.  A,  Gen..  674,  pur.  6. 

*  See  the  title  "  Proceeclings  in  Revision"  in  tbe  cbiipter  entitled  The  Incidents  op 
THE  Thial. 

■*  Ibid.,  673,  par.  4.  'J'lms  where  a  court-martial,  on  being  recojivened  with  a  view 
of  giving  it  an  opportunity  lo  modify  a  sentence  manifestly  too  lenient  for  tbe  offense 
found,  dot'idi'il  to  adhere  to  ibe  sentence  as  adjudged,  and,  on  being  again  reassenibkd 
to  consider  furtlicr  grounds  |)resented  by  the  reviewing  commander  for  tbe  infliction  of 
a  sever,  r  pena'ty,  again  declined  to  increase  the  punisliment, //«W  that  it  was  within 
the  autiiority  of  tlie  reviewing  officer,  and  would  be  no  more  than  proper  and  dignified 
for  him,  in  taking  final  action  upon  tbe  case,  to  retiect  upon  the  refusal  of  tbe  court  as 
ill  judged  and  as  having  the  effect  to  impair  the  discipline  and  prejudice  tbe  interests 
of  the  military  service.     ll>id. 

In  passing  upon  tlie  findings  and  sentence  of  a  court-martial,  tbe  reviewing  officer 
will  properly  attach  special  weight  to  its  conclusions  where  tbe  testimony  has  been  of  a 
coutlicliiig  character.  Thi.s  for  the  reason  that,  having  the  witnes.«es  before  it  in  person, 
the  court  was  qualified  to  judge,  fronx  their  manner  in  connection  with  their  statements, 
as  to  the  proper  measure  of  creilibility  to  be  attached  to  them  individuallv.*  Ibid.,  674,' 
par.  5. 

*  See  the  early  case  of  C:ipt.  Weisner,  Am.  Arcliiv..  .Mli  SenV<.  vol.  ii..  p.  S9.%.  S.i  civil  ooiirt«  will 
rarely  interfere,  except  in  i-a-ie<  of  elear  injustice,  witli  verdicts  of  juries  wiii.-li  liave  turned  upon  th« 
credibility  of  witnesses.    Wri-lii  vs.  State,  -A  Ua.,  110;  Wliitten  fs.  State,  47  /(/.,  297. 


i'42  MILITARY  LAW. 

approval  cannot  then  be  substituted  for  a  disapproval  or  vice  versa,  nor  can 
an  approved  punishment  be  mitigated  or  commuted.' 

It  is  an  established  principle  that  when  the  final  action  of  the  reviewing 
officer  has  been  published  in  orders  to  the  command  and  notified  to  the 
accused,  his  power  of  approval  and  disapproval  in  the  case  is  exhausted,  and 
his  action  cannot  be  recalled  or  modified.  Wliere  a  department  commander 
applied  to  the  War  Department  for  the  return  of  the  j)roceedings  of  a  case 
in  order  that  he  might  modif}'  his  action  thereon,  it  was  held  that,  as  the 
same  had  been  formally  promulgated  in  orders  and  had  duly  taken  effect, 
the  power  of  the  reviewing  officer  over  the  case  was  exhausted,  and  the 
application  could  not  legally  be  complied  with." 

Power  to  Review  Not  Subject  to  Delegation. — A  military  commander 
cannot  of  course  delegate  to  an  inferior,  or  other  officer,  his  function  as 
reviewing  authority  of  the  proceedings  or  sentence  of  a  court-martial,  as 
conferred  by  the  104th  or  109th  Article  of  AVar  or  other  statute.  Nor  can 
he  regularly  authorize  a  staff  or  other  officer  to  write  and  subscribe  for 
him  the  action  by  way  of  approval,  disapproval,  etc.,  which  he  has 
decided  to  take  upon  such  proceedings.  An  ai)proval  purporting  to  be  sub- 
scribed by  the  commander  "by"  his  staff  judge-advocate  or  assistant 
adjutant-general  would  be  open  to  question  and  quite  irregnlar;  as  would 
also  be  any  action  subscribed  by  such  an  officer  purporting  to  be  taken  "  in 
the  absence  and  by  the  direction  of  "  the  commander.' 

Power  to  Review  Not  Subject  to  Revision  by  Higher  Authority. — In  act- 
ing upon  the  proceedings  of  a  court-martial,  tlie  legal  reviewing  officer  acts 
]»artly  in  a  judicial  and  partly  in  a  ministerial  capacity.  He  "  decides  "  and 
"  orders,"  and  the  due  exercise  of  his  proper  functions  cannot  be  revised  by 
superior  military  authority.  It  has  been  held  that  a  reviewing  officer  who  had 
duly  acted  upon  a  sentence  and  promulgated  his  action  in  orders  could  not 
be  required  by  a  higher  commander,  or  by  the  Secretary  of  War,  to  revoke 


'Dig.  J.  A.  Gen.,  674,  par.  8.  But,  wLero,  after  tlie  reviewing  commander  had 
approved  a  sentence  in  general  orders  and  tlie  court  had  been  dissolved,  it  was  discovered 
that  there  was  a  f/ital  defect  in  the  proceedings  in  that  they  did  not  show  that  the  court 
or  judge-advocate  had  been  sworn  in  tiie  case,  held  that  the  commander  would  properly 
issue  a  supplemental  (jrder  declaring  tlie  proceedings  a  mdlity  and  the  original  order 
inoperative  and  withdrawn  on  account  of  tiie  defect.     Ibid.,  076,  ])ar.  15. 

^  Ibid.,  67o,  par.  Vd.  Where  the  convening  commander  dissolves  a  court  ])ending  a 
trial,  his  power  as  to  that  court  is  exhausted  and  he  cannot  revive  it  as  such.  He  may 
reconvene  the  same  memb;rs  as  a  court  martial,  but  it  will  be  another  and  distinct  tri- 
bunal.    Ibid.,  676.  par.  16. 

A  sentence  to  forfeit  certain  pay  was  approved,  and  such  approval  promulgated  in 
orders  of  FeV).  18,  1865.  On  March  10th  following  the  reviewing  officer  "  reconsid- 
ered "  his  action,  and  by  another  order  disapproved  tlie  .sentence,  and  this  order  was  also 
promulgated.  //tfW  that  the  latter  order  was  of  no  effect.  The  lirst  order  executed  the 
forfeiture,  making  the  amount  forfeited  public  money,  and  exhausted  the  power  of  the 
reviewing  autliority.     Ibid.,  par.  14. 

» Ibid.,  674,  par.  7. 


THE  AirnCLE.S   OF   WAH.  543 

such  action.     If  the  sentence  be  deemed  unwurranted  or  excessive,  relief 
may  be  extended  through  the  power  of  pardon  or  remission.' 

Akticle  105.  \o  sentence  of  a  court-marl ial,  uijlictiny  the  punislunent 
of  death,  shall  be  carried  into  execution  until  it  .-^hall  have  been  confirmed  by 
the  President ;  except  in  the  cases  of  persons  convicted,  in  time  of  war,  as 
spies,  mutineers,  deserters,  or  murderers,  and  in  the  cases  of  guerrilla  maraud- 
ers convicted,  in  time  of  war,  of  robbery,  burglary,  arson,  rape,  assault 
luith  intent  to  commit  rape,  or  of  violation  of  the  laws  and  customs  of  war  ; 
and  in  such  excepted  cases  the  sentence  of  death  may  be  carried  into  execution 
upon  confirmation  by  the  comma7idi7ig  general  in  the  field  or  the  commander 
of  the  department,  as  the  case  may  be. 

The  history  of  the  first  clause  of  this  Article  lias  already  been  explained.' 
The  excepting  clause  is  a  modification  of  the  65th  and  89th  of  the  Articles 
of  180G,  in  respect  to  their  application  to  sentences  of  death  and  dismissal  of 
officers  in  time  of  war.  Article  65  of  the  Code  of  1806  conferred  authority 
upon  an  armv  or  department  commander,  in  time  of  Avar,  to  execute 
sentences  of  death  or  dismissal;  Article  8'J  of  the  same  code  conferred 
authority  to  "pardon  or  mitigate"  sentences  imposed  by  courts-martial 
constituted  by  them,  except  sentences  of  death  and  dismissal,  which  were 
authorized  to  be  suspended  "  until  the  pleasure  of  the  President  "  could  be 
known;  and  such  "  suspension,  together  with  copies  of  the  proceedings  of 
the  court-martial,"  were  to  be  immediately  transmitted  to  the  President  for 
his  determination. 

The  authority  thus  conferred  was  restricted  in  1862  by  the  requirement 
that  "  no  sentence  of  death  or  imprisonment  in  the  penitentiary  shall  be 
carried  into  elfect  until  it  shall  have  been  approved  by  the  President."  '  By 
the  Act  of  :\[arch  3,  1863,  however,  so  much  of  the  enactment  of  1862  as 
required  "  the  approval  of  the  President  to  carry  into  execution  the  sen- 
tence of  a  court-martial  "  was  repealed  in  so  far  as  it  related  to  "carrying 
into  execution  the  sentence  of  any  court-martial  against  any  person  convicted 
as  a  spy  or  deserter,  or  of  mutiny  or  murder."  Sentences  for  these  ofi'enses 
could  be  carried  into  effect  by  tiie  commanding  generals  of  armies  in  the 
field.'  The  power  thus  conferred  upon  commanding  generals  of  armies  in 
the  field  was,  by  the  Act  of  July  2,  1864,  conferred  upon  department  com- 
manders, atul  was  extended  to  sentences  imposed  by  military  commissions, 
as  well  as  by  courts-martial,  for  robbery,  arson,  burglary,  rape,  assault  with 
intent  to  commit  rape,  and  for  violations  of  the  laws  and  customs  of  war,  as 
well  as  sentences  against  spies,  mutineers,  deserters,  and  murderers,  together 
with  all  sentences  against  guerrilla  marauders.' 

'  Dig.  J.  A.  Gen.,  676,  par.  17. 

'  See  Article  104.  supra. 

'Sec.  5.  Act  of  .Tulv  17.  18<)2  (12  Stat,  at  Large,  598). 

*Sec.  21.  Act  of  March  :5.  1808  (12  ibid.,  735). 

»  Act  of  July  2,  1861  (Vi  ibid.,  3J6;. 


5:ti  MILITARY  LAW. 

It  has  thus  been  seen  that  the  Articles  of  1806  and  subsequent  enact- 
ments of  simihar  character  conferred  authority  upon  the  commanding  general 
of  a  department,  or  army  in  the  field,  in  time  of  war,  to  execute  a  sentence 
of  death  or  dismissal,  but  not  to  exercise  the  power  oi  pardon  or  mitigation. 
This  principle  was  recognized  in  the  enactment  of  18G4  by  a  clause  confer- 
ring upon  the  officers  above  named  the  power  to  "  remit  or  mitigate  "  sen- 
tences   of    death    or   dismissal  "during    the  continuance    of   the   present 
rebellion."    At  the  close  of  hostilities,  therefore,  such  power  ceased  to  exist. 
The  present  Article  confers  express  authority  upon  the  "  commanding 
general  in  the  field  or  the  commander  of  the  department,  as  the  case  may 
"be,"  to  confirm  capital  sentences  and  to  carry  them  into  execution  in  the 
cases  of  persons  convicted,  in  time  of  war,  as  spies,  mutineers,  deserters,  or 
murderers,  and  in  the  cases  of  guerrilla  marauders  convicted,  in  time  of 
war,  of  robbery,  burglary,  arson,  rape,  assault  with  intent  to  commit  rape, 
or  of  violation  of  the  laws  and  customs  of  war.      But  the  corresponding 
authority  to  remit  or  mitigate  is  not  expressly  conferred  by  the  terms  of  the 
lOoth  Article.     It  would  thus  seem  to  have  been  the  intention  of  Congress, 
in  this  enactment,  to  confer  upon  commanding  generals,  in  time  of  war,  a 
power  to  approve  and  execute  such  sentences  adequate  to  the  strict  necessities 
of  discipline  and  no  more.     It  is  clearly  essential  to  discipline  and  to  the 
maintenance  of  order  in  the  theatre  of  active  military  operations  that  com- 
manders in  the  field  should  have  power  to  carry  such  sentences  into  effect. 
If,  however,  an  occasion  arises  for  clemency,  or  for  an  exercise  of  the  pardon- 
ing power,  it  was  evidently  deemed  best  by  Congress — no  urgent  question 
of   discipline   being   involved — to   leave    the    matter   in   the  hands  of  the 
Executive,  in  whom  tlie  power  to  grant  pardons  is  vested  by  the  Consti- 
tution; and  such  power  of   pardon    or   mitigation  was  therefore  expressly 
reserved  to  the  President  in  the  enactment  of  1862  above  cited,  which  is 
now  embodied  in  the  first  clause  of  the  112th  Article  of  War.' 

Article  106.  In  time  of  peace  no  sentence  of  a  court-martial  directing 
the  dismissal  of  an  officer  shall  he  carried  into  execution  until  it  shall  have 
been  confirmed  hy  the  President.^ 

Article  8,  Section  14,  of  the  American  Articles  of  1776  contained  the 
requirement,  derived  from  the  corresponding  provision  of  the  British  Code  of 
177-4/  that  "no  sentence  of  a  general  court-martial  shall  be  put  in  execu- 
tion till  after  a  report  shall  be  made  of  the  whole  proceedings  to  Congress, 
or  to  the  general  or  commander-in-chief  of  tlie  forces  of  the  United  States, 
and  their  or  his  directions  be  signified  thereupon."  Article  2,  Section  14, 
of  the  Resolution  of  Congress  of  May  31,  1786,  contained  the  provision  that 


'-  Sec.  7.  Act  of  July  17,  1862  (12  Stat,  al  Largo,  598). 

'  See  Articles  104,  105,  and  106,  and  the  chapter  entitled  The  Reviewing  Author- 
ity. 

*  Article  10,  Section  15. 


THE  AirnCLES  OF   WAE.  545 

"  no  sentence  of  a  general  court-martial,  in  time  of  peace,  extending  to  the 
loss  of  life,  the  dismission  of  a  commissioned  officer,  or  which  shall,  either 
in  time  of  peace  or  war,  respect  a  general  officer,  be  carried  into  execution 
until  after  the  whole  proceedings  shall  have  been  transmitted  to  the  Secre- 
tary at  War,  to  he  laid  before  Congress  for  their  confirmation  or  disapproval 
and  their  orders  in  the  case."  This  requirement  was  embodied  in  the 
Articles  of  1800,'  substituting  the  President  of  the  United  States  for  the 
Congress  as  the  final  reviewing  authority. 

The  word  "approved  "  employed  by  the  President  in  passing  upon  a 
sentence  of  dismissal  has  been  held  to  be  substantially  equivalent  to  "  con- 
firmed," the  word  used  in  the  Article.  In  practice  the  two  words  are  used 
indiffer  ently  in  this  connection.^ 

The  Article  does  not  expressly  require  that  the  confirmation  of  the  sen- 
tence shall  be  signed  by  tlie  President,  nor  does  it  prescribe  any  form  in 
which  the  confirmation  shall  be  declared.  A  written  approval,  therefore,  of  a 
sentence  of  dismissal  authenticated  by  the  signature  of  the  Secretary  of  War 
or  expressed  to  be  by  his  order  is  a  suthcient  confirmation  within  the 
Article ;  the  case  being  deemed  to  be  governed  by  the  well-established  prin- 
ciple that  where,  to  give  effect  to  an  executive  proceeding,  the  personal 
signature  of  the  President  is  not  made  essential  by  law,  that  of  the  head  of 
the  department  to  which  the  subject  belongs  shall  be  sufficient  for  the  pur- 
pose; the  assent  of  the  President  to  his  order  or  direction  being  presumed, 
and  his  act  being  deemed  in  law  the  act  of  the  President  whom  he  repre- 
sents.' 

Akticle  107.  No  sentence  of  a  court-martial  appointed  by  the  comynander 
of  a  division  or  of  a  separate  .brigade  of  troops,  directing  the  dismissal  of  an 
officer,  shall  be  carried  into  execution  until  it  shall  have  been  confirmed  by 
the  general  commanding  the  army  in  the  field  to  which  the  division  or  brigade 
belongs.* 

'  As  Article  fio. 

'  Dig.  .1.  A.  Gen..  128,  par.  1. 

'  Ibid  ,  par.  2.  This  view  has  been  sustained  by  an  opinion  of  the  Attorney-General 
of  June  6,  1877,  (15  Opins.,  290,)  and  bj'  a  Report  of  the  Judiciary  Committee  of  the 
Sena'e  of  March  '6.  1879,— Rep.  No.  868.  4oth  Cong.,  3(1  Ses.  (From"  this  reiiort.  indeetl, 
two  members  of  the  (^ommiitee  dissented  in  a  subsequent  report  of  April  7.  1879, — Mis. 
Doc.  No.  21,  4Glh  Cong.,  1st  Ses.) 

This  subjict  has  been  more  recentlv  considered  by  the  U.  S.  Supreme  Court  in  a  suc- 
cession of  cases  (Runkle  vs.  U.  S  ,  122" U.  S.,  543;  U".  S.  vs.  Page,  137  U.  S.,  673:  U.  S. 
vs.  Fletcher,  148  U.  8.,  84),  the  effect  of  whicii  is  that  a  statement  of  approval  of  a  sen- 
tence of  dismissal  authenticated  by  the  Secretary  of  War  is  legally  siifficient  provided 
that  it  appear,  by  clear  presumption  therefrom,  that  the  proceedings  have  actually  been 
subuiitted  to  the  President 

In  an  ojiinion  of  the  Attorney-General  of  April  1,  1879,  (16  Opins..  298, 't  it  was  held 
that  a  conlirmation  of  a  sentence  of  dismissal  of  an  officer,  though  irregularly  and 
undul}^  authenticated,  would  be  ratified  by  an  appointment  by  the  President  of  another 
officer  to  till  the  supposed  vacancy,  and  tliat  the  appointment  thus  made  would  be  valid 
and  operative. 

*See  Articles  104,  105,  and  106,  supra. 


54:6  MILITARY  LAW. 

Akticle  108.  No  sentence  of  a  court-martial,  either  in  time  of  peace  or 
in  time  of  war,  respecting  a  general  officer  shall  be  carried  into  execution 
until  it  shall  have  been  confirmed  by  the  President.' 

Article  109.  All  sentences  of  a  court-martial  7nay  be  confirmed  and  car- 
ried into  execution  by  the  officer  ordering  the  court,  or  by  the  officer  command- 
ing for  the  time  being,  where  confirmation  by  the  President,  or  by  the  com- 
manding general  in  the  field,  or  commander  of  the  dejyartment,  is  not  required 

by  tJie><e  articles.' 

Article  110.  Xo  sentence  adjudged  by  a  field-officer  detailed  to  try 
soldiers  of  his  regiment  shall  be  carried  into  execution  until  the  same  shall 
have  been  approved  by  the  brigade  commander,  or,  in  case  there  be  no  brigade 
commander,  by  the  commanding  officer  of  the  post  or  camp.'' 

This  appeared  for  the  first  time  in  statutory  form  as  Section  7  of  the 
Act  of  July  17,  1802;'  its  purpose  being  to  provide  for  the  review  and 
approval  or  confirmation  and  execution  of  sentences  imposed  by  the  newly 
constituted  field-officer's  court.  The  words  "  or  camp  "  were  added  after 
"  post,"  in  the  last  line  of  the  Article,  by  the  Act  of  July  27,  1892.' 

Article  111.  Any  officer  who  has  authority  to  carry  into  execution  the 
sentence  of  death  or  of  dismissal  of  an  officer  may  suspend  the  same  until 
the  pleasure  of  the  President  shall  be  known;  and  in  such  case  he  shall 
immediately  transmit  to  the  President  a  copy  of  the  order  of  suspension, 
together  with  a  copy  of  the  proceedings  of  the  court.'-' 

An  officer  suspending  the  execution  of  a  sentence  for  the  action  .of  the 
President  under  tbis  Article  should  first  formally  ctpprove  the  same.  Simply 
to  forward  the  proceedings  stating  that  the  sentence  has  been  suspended  is 
incomplete  and  irregular.  If  the  commander  disapproves  the  sentence,  he 
cannot  of  course  suspend  and  transmit  under  this  Article,  since  there  remains 
nothing  for  the  President  to  act  upon." 

Where  a  case  is  submitted  to  the  President  for  his  action  under  this 
Article,  he  may  approve  or  disapprove  the  sentence  wholly  or  in  part,  and, 
if  approving,  may  exercise  the  power  of  remission  or  mitigation.' 

Article  112,  Every  officer  2vho  is  authorized  to  order  a  general  court- 
martial  shall  have  poioer  to  pardon  or  mitigate  any  punishment  adjudged  by 
it,  except  the  jmnishment  of  death  or  of  dismissal  of  an  officer.  Every  officer 
commanding  a  regiment  or  garrison  in  which  a  regimental  or  garrison  court- 
martial  mail  be  held,  shall  have  power  to  j)ardon  or  mitigate  any  punishment 
which  such  court  may  adjudge. 

*  See  Articles  104,  105,  and  106,  supra.  ,       u     * 

*  See  Articles  104,  10.5,  and  106  for  a  history  of  this  provision.  See,  also,  the  chapter 
entitled  The  Rk-viewino  Autuokity. 

»  Sec.  7,  Act  of  .July  17,  1863  (12  Stat,  at  Larsje,  598). 

*  Act  of  .July  27,  1898  (27  Slat,  at  Large.  278). 

'  For  a  history  of  this  Article  see  the  104th  aud  106th  Articles  of  War. 
*Di2.  J.  A.  Gen..  129,  par.  1. 
^  Ibid.,  par.  2. 


THM  ARTICLES   OF    WAR.  .^47 

The  pardoning  power  in  respect  to  criminal  offenses,  military  as  well  as 
civil,  and  the  authority  to  remit,  mitigate,  and  commute  punishments 
imposed  by  military  tribunals,  which  are  but  incidents  of  the  general  power 
to  pardon,  are  l)y  the  English  Constitution  vested  in  the  sovereign.  The 
early  Articles  of  War  requiring  the  sentences  of  general  courts-martial  to  be 
submitted  to  the  sovereign  prior  to  execution  '  were  adopted  with  a  view 
to  enable  this  power  to  be  exercised  in  cases  in  which,  in  the  opinion  of  the 
sovereign  or  his  constitutional  advisers,  an  act  of  clemency  or  mercy  was 
deemed  appropriate,'  This  power  has  been  and  may  still  be  exercised 
directly  by  the  crown,  or  may  be  conferred  upon  generals  commanding-in- 
chief  by  letters  under  tiie  royal  sign  manual. 

Prior  to  the  adoption  of  the  Federal  Constitution,  the  power  to  confirm 
the  more  important  sentences — death  and  the  dismissal  of  commissioned 
officers,  for  example — was  vested  in  the  Congress,"  and  was  from  time  to 
time  exercised  by  that  body.  There  being  no  executive  head  to  the  (Jovern- 
nient  under  the  Articles  of  C'onfederation,  the  power  to  pardon  was  vested 
in  the  general  or  commander-in-chief  for  the  time  being,  wlio  was  authorized 
to  pardon  or  mitigate  "any  of  the  punishments  order  to  be  inflicted  for  any 
of  the  offenses  mentioned  in  the  foregoing  Articles.''  *  The  corresponding 
power  of  pardon  and  mitigation  in  respect  to  regimental  courts-martial  was 
by  the  same  Article  conferred  upon  the  regimental  commander." 

By  a  resolution  of  Congress  of  April  14,  1777,  the  Articles  above  cited 
were  repealed  and  replaced  by  two  new  Articles,  one  of  which  required  sen- 
tences of  general  courts-martial  to  be  reported  to  Congress,'  as  before;  the 
other,  however,  conferred  authority  upon  Continental  general  officers  to 
appoint  general  courts-martial  and  to  "pardon  or  mitigate  all  punishments 
authorized  except  the  sentence  of  death,"'  which  they  were  authorized  to 
suspend  a"nd  report  the  proceedings  in  the  case  to  the  Congress  for  its 
action.'  By  a  Resolution  of  May  27,  1777,  the  power  of  pardon  and  mitiga- 
tion which  had  been  vested  in  the  "general  or  commander-in-chief  "  by  the 


'  See  Article  10.  Section  15.  of  the  British  Codes  of  176")  and  1774. 

'  Clode,  Mil.  Tvuv.  145.  The  power  of  commutation,  inasmuch  a-J  it  substituted 
another  and  dillficnt  judsrment  for  that  pronounced  by  the  courts,  was  held  in  1727  to 
be  beyond  the  authority  of  the  sovereign,  as  an  unwarranted  e.\ercise  of  tlie  pardoning 
power.  Authority  ti)  commute  was  therefore  conferred  upon  the  crown  by  the  Mutiny 
Act.     1  ('lode.  Mil.  Forces.  509.  510. 

*  Bv  Article  8,  Section  14.  of  the  American  Articles  of  1776. 

*  See  Article  2,  Section  18.  ihid. 

*  Ihid. 

*  Article  3,  Resolution  of  Congress  of  April  14,  1877. 
'  Article  4,  ibid. 

»  That  tlie  authority  to  commute  was  not  conferred  by  this  enactment  or  by  that  of 
May  27,  1777.  is  evidenced  bv  the  following  extract  from  a  letter  from  Washington  to 
Gates  uniler  date  of  Febru'ary  14,  1778.  "Tlie  right  of  mitigating  only  extends,  in 
my  opini(^n,  to  lowering  the  degree  of  punishment,  in  the  same  species  presciibed.  and 
does  not  imply  :my  autho'ity  to  change  the  nature  or  (pialily  of  it  altogether."  VI. 
Writings  of  Washington,  374. 


548  MILITARY  LAW. 

Articles  of  1776,  but  which  had  been  withdra-.vn  by  the  Resolution  of  April 
14th  above  cited,  was  restored;  and  the  power  "to  execute  sentences  and  to 
grant  pardons  therefor,  by  way  of  mitigation  or  remission,"  was  conferred 
upon  "  general  officers  commanding  departments"  "  without  being  obliged 
to  report  the  matter  to  Congress  or  the  commander-in-chief."  The  sub- 
ject of  approval  and  confirmation,  as  well  as  of  pardon  and  mitigation,  in 
respect  to  general  courts-martial  having  been  thus  made  the  subject  of 
exhaustive  legislative  regulation,  was  not  mentioned  in  the  Resolutions  of 
Congress  of  178G.  In  the  Articles  of  1806  the  power  of  confirmation  is 
regulated  by  the  65th  Article;  while  the  power  of  pardon  and  mitigation  in 
respect  to  both  general  and  inferior  courts-martial  is  regulated  by  the  pro- 
visions of  the  89th  Article.' 

Nature  of  the  Power ;  Effects  of  its  Exercise.— The  President  is  em- 
powered by  the  Constitution'  "to  grant  pardons  for  offenses  against  the 
United  States  " ;  and  a  pardon,  like  a  deed,  must,  in  order  to  take  effect,  be 
delivered  to  and  accepted  by  the  party  to  whom  it  is  granted.' 

It  is  the  effect  of  the  exercise  of  the  pardoning  power  by  the  President 
to  relieve  the  party  from  all  punishment  remaining  to  be  suffered.  Where, 
therefore,  he  remits  the  unexecuted  portion  of  a  term  of  imprisonment,  an 
additional  penalty,  which,  by  the  express  terms  of  the  sentence,  was  to  be 
incurred  at  the  end  of  the  adjudged  term,  (as  a  dishonorable  discharge  from 
the  service),  eannot  be  enforced.  The  pardon  having  intervened,  the  sen- 
tence ceases  to  have  any  effect  whatever  in  law,  and  the  soldier — the 
remainder  of  his  service  being  regular — must  be  honorably  discharged.* 

'  Article  60  of  the  Priuce  Rupert  Code  provided  that  "when  sentence  is  to  be  given 
the  President  shall  pronounce  it;  and,  after  that  the  sentence  is  pronounced,  the  Provost- 
Martial  shall  have  warrant  to  cause  execution  to  be  done  according  to  the  sentence." 
Article  59  of  the  same  code  contained  provision  for  a  regimental  provost-marshal  who 
was  to  "have  the  same  priviledge  in  his  own  regiment  as  the  Provost-Martial  General 
hath  in  the  Array  or  Camp."  The  King  James  Articles  of  16S6  contained  similar  pro- 
visions. Article  12,  Section  15,  of  the  British  Codes  of  1765  and  1774  contains  the 
requirement  that  no  sentence  of  a  regimental  or  garrison  court-mariial  shall  "be 
executed  until  the  Commanding  officer  (not  being  a  member  of  the  Court-Martial).  or 
the  Governor  of  the  Garrison  shall  have  confirmed  the  same."  This  was  adopted  with- 
out change  as  Article  10,  Secti(jn  14,  of  the  American  Articles  of  1776,  and  as  Article 
3,  Section  14,  of  the  Resolution  of  Congress  of  May  31,  1786.  In  the  Articles  of  1806 
the  power  to  approve  and  confirm  is  conveyed  by  Article  65,  the  power  to  pardon  and 
mitigate  being  conferred  by  Article  89. 

'  Article  3,  Sectitm  2,  par.  1. 

'  Dig.  J.  A.  Gen,,  551.  par.  1.  Thus  there  can  be  no  pardon  of  a  deceased  officer  or 
soldier;  and  that  the  pardon  is  asked  by  the  party's  widow  or  heir,  who  is  to  he  pecun- 
iarily benefited  thereby,  cannot  affect  the  principle.  So  where,  in  a  case  of  an  officer 
who  iiad  died  while  under  a  sentence  of  suspension  from  rank,  a  pardon  was  a.sked  for 
the  purpo.se  of  having  the  stigma  removed  from  his  record  in  the  service,  held  tliat  the 
case  was  not  one  in  which  the  pardoning  power  could  be  exercised.  Ibid.  See,  also, 
U.  S.  vs.  Wilson,  7  Pet.,  150;  In  matter  of  DePuy,  3  Benedict,  307;  6  Opin.  Att.-Gen., 
403. 

*  Ibid.,  553,  par.  5.  It  is  the  effect  of  w  full  pardon  (otlierwise  of  a  mere  remission 
of  the  ptinishment)  to  remove  all  penal  consequence  (except  of  course  executed  penalties) 
and  all  disabilities  attached  by  U.   S.  statute  (or  army  regulation)  to  the    offense  or 


THE  ARTICLES  OF  WAR.  549 

A  pardon  is  uot  retroactive.  It  canuot  remit  an  execnted  punishment, 
or  restore  uu  executed  forfeiture  resulting  either  hy  operation  of  law  or  sen- 
tence. It  cannot,  therefore,  restore  the  forfeitures  incident  upon  desertion. 
Further,  it  cannot  modify  past  history  or  reverse  or  alter  the  facts  of  a  com- 
pleted record.  From  and  after  the  taking  effect  of  a  pardon  the  recipient 
is  innocent  in  law  as  to  any  subsequent  contingencies,  but  the  pardon  does 
uot  annihilate  the  fact  that  he  was  guilty  of  the  offense.  The  pardon  indeed 
proceeds  upon  the  theory  that  the  party  was  guilty  in  fact.  Tiie  asking  for 
it  is  an  admission  of  guilt,  and  the  granting  of  it  is  a  recognition  of  the  fact 
of  guilt.' 

to  the  conviction  or  sentence.*  Tlius  the  pardon  of  a  convicted  deserter  will  r(<lieve 
him  from  the  loss  of  the  rights  of  citizensliip  ullached  by  the  Act  of  March  3,  186.5, 
Sees  199G,  1998,  Rev.  Sis.,  to  a  conviction  oldeserUon.f  But  a  pardon  by  the  Pres^ident 
will  be  ineffectual  of  course  to  remove  a  disqualitication  incurred  by  the  offender  under 
a  State  statute  X     I^'o-  J    -■^-  *-Teu..  551,  par.  2. 

Ili'ld  that  a  [lurdon  extended  to  an  enemy  for  his  offense  or  offenses  as  suc/i.  com- 
mitted during  the  war,  ditt  n(Jt  entitle  him  to  be  paid  rent  for  the  occupation  of  his  real 
estate  by  the  L'.  S.  military  authorities  while  occupying  by  the  right  of  conquest  the 
region  of  countr}'  iu  wliich  sucli  estate  was  situated.     Ibid.,  par.  3 

'  Dig.  J.  A  Geu.,  556,  par.  15.  Thus  held  that  the  President  could  not  by  a  pardon 
remove  the  charge  of  desertion  from  the  record  of  a  former  soldier,  who  had  long  since 
become  a  civilian  by  reason  of  the  muster-oiU  and  non-existence  of  the  volunteer  army  to 
which  he  had  belonged  in  the  late  war;  and  tliat  the  effect  of  his  pardon  would  not  be  to 
give  liim  an  honorable  discharge.  A  pardon  would  not  only  not  remove  a  charge  of 
desertion,  but  would  in  fact  contirm  it,  and  constitute  an  additional  reason  for  retaining 
it  on  the  record.  Aiul  a  partv  cantiot  by  an  executive  act  be  discharged  from  the  service 
unless  he  is  in  the  service.     Ibid. 

A  pardon  by  the  President  will  leach  and  remove  a  continuing  disciualitication  or 
disability  incident  upon  the  commission  of  an  offense  against  the  United  States,  or  upon 
a  conviction  by  a  United  States  court  or  a  court-martial,  biU  not  a  disqurditication 
incurred  (as  upon  conviction  of  irrand  larceny)  under  the  laws  of  a  State.  Ibid.,  555, 
par.  17.  " 

.\  pardon  cannot  reach  or  remit  a  fully  executed  sentence,  though  the  same  may  have 
been  unjustly  imposed.  A  pardon  cannot  of  course  undo  a  corporal  punishment  fully 
inflicted:  ^  nor  can  it  avail  to  restore  to  the  army  .in  officer  or  soldier  legally  separated 
therefrom  and  made  a  civilian  by  a  duly  approved  sentence  of  dismissal,  |1  or  by  a  dis- 
honorable discharge.  Nor  can  it  restore  a  fine  priid.  or  pay  forfeited,  when  the  amount 
of  the  same  has  once  srone  beyond  the  control  of  the  Executive  and  been  covered  into 
the  U.  S  treasury  and  become  public  fuiuls,*^  whatever  may  have  been  the  merits  of  the 
rase.  Otherwise,  however,  where  the  monev  still  remains  in  the  hands  of  a  military 
disbuisiug  officer  or  other  intermediate  official  **  Where,  however,  any  )>ortion  of  a 
punishment  remains  unexecuted,  that  portion  mav  be  remitted  by  the  pardoning  power.+t 
Congress  alone  can  restore  pay  fullv  forfeited  to  the  United  States,  or  otherwise  pecu- 
niarily imiemnifv  an  officer  or  soldier  for  the  consequences  of  a  legally  executed  sen- 
tence.    Ibid.,  552,  par.  4. 

*  Kr  pnrte  Garland.  4  Wall..  .'?«0:  12  Opin.  At.-Gpti..  81.  ..o   r,  i     tta      That  fhi« 

t'^(^Piiis.  At.-Gen..  2^4- q  trf     47«-  14   id     12«.     And  seo  Peonle  vs.  Rr>w»»n.  4.3  Oal..  4.3«.     inat  rnis 
disaljiliry  can  att.i<-ti  only'  upon   a  conviction,  see  the  47tli  Article,   title  Statutory  Consequences  of 
Des'ytinn,  .ind  authorities  cited  in  note, 
t  T  Onins.  .\t.-Gen..  760 
§  See  «!  Opins.  At.  Gen     2R4 

1  12  0pins...54S:  Ex  pnrl»  Garland.  4  Wallace.  381.  ^.  ,  ^.^  „or,ir,n 

•■  2  Optus.  At.-Gen.,  .330 •  ir,  ,,;  i  This  because  the  same  Constitution  which  conveys  the  pardon- 
ing power  contains  a  provision  of  'equal  efficiencv"  (Article  1.  Sec.  9.  §  6)  to  the  ^ffect  that  ni'.^''e>  '" 
the  public  treasury  shall  not  hp  withdrawn  except  bv  an  appropriation  hv  .\ct  of  <■  oneness.  »  "^•-  j  '  • 
Compare,  ui  this  connpction  Knote  tv--  United  States,  h  Otto.  149.  where  it  was  held  that  an  ^^^••""^l: 
pardon  would  not  entitle  a  party  to  the  proceeds  of  certain  personal  effects  confiscated  atid  .sow  oy 
the  United  States  as  the  property  of  an  enemy  a^fer  such  proceeds  had  been  duly  paid  into  tne 
treasury. 

*•  14  Opins.  At.-Gen..  601.  ..         , 

+t  And  the  Executive,  in  the  exercise  of  the  pardoning  power,  "may  pardon  or  remit  s  portiOQ  or 
the  sentence  at  one  time  and  a  different  portion  at  another."    3  Opins.  At.-Qen.,  418. 


550  MILITARY  LAW. 

Continuing  Punishments. — Tiie  pardoning  power  extends  to  continuing 
punishments,  or  punishments  which  are  never  fully  executed, — remitting  in 
each  case  the  punishment  from  and  after  the  taking  effect  of  the  pardon. 
Of  this  class  is  the  punishment  of  disqualification  to  iiold  military  or  public 
office,  as  also  that  of  the  losing  of  or  reduction  in  "  tiles  "  (or  relative  rank) 
in  the  list  of  officers  of  the  offender's  grade;  these,  being  continuing  punish- 
ments, may  be  pnt  an  end  to  at  any  time  by  a  remission  by  the  pardoning 
power. ' 

Conditional  Pardons. — It  is  settled  that  a  pardon  may  be  condiiional — 
may  be  granted  upon  a  condition  precedent  or  subsequent."  Thug  where 
the  President,  by  his  proclamation  of  March  11,  18G5,  granted  a  pardon  to 
all  deserters  "on  condition  that  they  duly  returned  (within  a  certain  time 
stated)  to  their  regiments,  etc.,  and  served  the  remainder  of  their  original 
terms  and,  in  addition,  a  period  equal  to  the  time  lost  by  desertion," 
a  soldier  who  duly  returned  under  this  proclamation  but,  after  remaining 
with  his  regiment  a  portion  of  the  period  indicated,  abandoned  the  service 
and  went  to  his  home,  was  held  liable  (the  legal  period  of  limitation  fixed 
by  the  103d  Article  of  War  not  having  expired)  to  be  brought  to  trial  for 
his  original  desertion;  the  condition  suhmjuent  upon  which  his  pardon  for 
the  same  had  been  extended  not  having  been  performed.' 

Constructive  Pardons. — While  to  restore  to  or  place  upon  duty  an  officer 
or  soldier  when  under  arrest  or  charges  on  account  of  an  alleged  offense 
would  not  probably  in  this  country,  to  the  same  extent  as  in  England,"  be 
regarded  as  operating  as  a  condonation  of  the  offense,  the  promotion  of  an 
officer  while  in  arrest  under  charges  has  been  viewed  as  a  constructive 
pardon  of  the  offense  or  offenses  on  account  of  which  he  has  been  arrested.' 
Such  a  promotion,  however,  could  not  operate  as  a  pardon  of  otlier 
offenses  committed  by  him,  of  the  commission  of  which  no  knowledge  was 
had  by  the  Executive  at  the  date  of  the  promotion.' 

While  ordering  or  authorizing  an  officer  or  soldier  when  under  sentence 
to  exercise  a  command,  or  perform  any  other  duty  inconsistent  with  the  con- 
tinned  execution  of  his  sentence,  has  been  viewed  as  a  constructive  pardon,' 


'  Die   J    A    Qm.,  5o3   par.  6:  12  Opin.  Alt.  Gen.,  547. 

"^  Ex  parte  Wells,  18  How.,  307  ;  Com.  r.s.  Haggerty,  4  Brewster,  326;  6  Opm.  Att.- 

Gen.,  405  ,      .,.  «•     j  •  ,    i    *  i 

2  Di"-  J  A  Gen..  554,  par.  9.  In  certain  ca-ses  of  nulUary  offenders  convicted  of  lar- 
ceny of"  public  property  or  convension  of  public  funds  (or  who  bad  escaped  from  mili- 
tary custody  vvbile  under  cbarges  for  snob  otfeiises),  and  api)lying  for  pardon,  admsed 
tbat  eyen  if  otberAvise  tboiigbt  wortby  of  pardon,  no  pardon  should  be  extended  to  them 
except  uiion  the  condition  precedent  of  iheir  making  good  the  funds  appropriated  or  the 
property  stolen  or  its  value.     Ibid..  \)&t.  \0.  ,.„    .„       ^  .    «ii   r    • 

*  See  Clode  Mil  Forces  of  the  Crown,  vol.  1,  p.  173;  Prendergast,  244-5,  in  connec- 
Uon  with  the  cases  cited  of  Sir  Walter  Raleigh,  Lord  Lucan,  Capt.  Achison,  etc. 

'  See  8  Opins.  Att.-Gen.,  237. 

♦  Dig.  J.  A.  Gen.,  553,  par.  7. 
■>  6  Opin.  Att.-Gen.,  714. 


THE  ARTICLES  OF   WAli.  55 1 

it  has  been  held  that,  to  allow  an  officer  while  under  a  sentence  of  suspension 
from  rank  to  perform  certain  slight  duties  in  closing  his  accounts  with 
the  United  States  could  not  be  regarded  as  having  any  sucli  effect.' 

Procedure. — The  pardoning  jiower  here  given  is  not  limited  in  its  exer- 
cise to  the  moment  of  the  ap])roving  of  the  scTitence,  but  may  be  employed 
as  long  as  there  remains  any  material  for  its  exercise.  Under  this  Article, 
as  inter])reted  by  the  usage  of  the  service,  a  department  (or  army)  com- 
mander may  in  iiis  discretion,  remit  at  any  time,  and  for  any  cause  deemed 
by  him  to  be  sufficient,  the  unexecuted  porti(m  of  the  sentence  of  any 
soldier  confined  in  his  command  under  a  sentence  imposed  by  a  court-mar- 
tial convened  by  him  or  by  a  predecessor  in  the  command." 

A  military  commander  vested  with  the  power  of  pardon  or  mitigation 
under  this^Article  is  not  authorized  to  delegate  the  same  to  an  inferior. 
Thus  a  department  commander  cannot  legally  authorize  a  post  commander 
to  remit  in  part,  upon  good  behavior,  the  punishment  of  a  soldier,  under 
sentence  at  the  post  commanded  by  the  latter,  who  has  been  convicted  by 
a  general  court  tlie  proceedings  of  which  have  been  acted  upon  by  the 
former.' 

Remission. — Remission  is  a  partial  exercise  of  the  pardoning  power, 
relieving  the  person  from  a  punishment  or  the  unexecuted  portion  of  a 
punishment,  but  not  pardoning  the  offense  as  such,  or  removing  the  disabili- 
ties or  penal  consequences  attaching  thereto  or  to  the  conviction."  The 
pardoning  of  "  punishment,"  authority  for  which  is  vested  in  certain  com- 
manders by  the  lU^th  Article  of  War,  is  remission.  An  offender  can  be 
completely  rehabilitated  only  by  a  full  pardon  granted  under  the  pardoning 
power  of  the  Constitution.^ 

Mitigation. — The  reviewing  authority  in  approving  the  punishment 
adjudged  by  the  court  and  ordering  its  enforcement,  is  authorized,  if  he 
deems  it  too  severe,  to  graduate  it  to  the  proper  measure  by  reducing  it  in 


'  Dig.  J.  A.  Gen..  553,  par.  8.  ILid  that  u  withdrawal  by  a  department  commander 
of  a  peiuiiug  charge  against  a  soldier,  upou  his  giving  a  pledge  lo  abstain  iu  the  future 
from  the  conduct  whicli  was  the  subject  of  the  charge,  did  not  operate  as  a  pardon  and 
could  not  be  pl(  adeil  as  such.  Had  it  been  done  byan  order  of  tlie  President,  it  couhl 
liave  had  no  furliier  operation  than  as  a  7^/«.<*/-condili()iial  pardon,  leaving  ihe  charge 
legally  renewable  upon  a  repctilion  of  the  offense.     Ihid.,  537.  par.  18. 

i/<'/<nhiit  an  order  issued  by  competent  authoriiy  at  about  the  close  of  the  war  (Decem- 
ber, 18fi5),  by  which  a  military  prisoner  convicted  of  larceny  by  court  niariial  was  simply 
released  before  the  end  of  his  term,  from  a  Stale  penitentiary,  was  an  act  of  coustrnctive 
pardon,  operating  to  remit  Ihe  \ine.\ecuted  portion  of  tlie  "sentence  ;  and  tiiat  a  formal 
pardon  by  the  President  was  not  essential  to  enable  the  party  to  e.\ercise  tlie  right  of 
suffrage  in  a  State  where  a  conviction  of  larceny,  unpardoued,  was  a  disqualincation. 
Ibid  ,   par.  19. 

■  Dig.  J.  A.  Gen..  130,  par.  4. 

*  Ibid. ,  par.  2. 

••  Comitate  Perkins  m.  Stevens,  24  Pick.,  277;  Lee  rs.  Murphv,  22  Grat.,  799;  1  Bish. 
Cr.  L..  $  7«3:  2  Opins.  Alt. -Gen.,  309:  5  id..  5S8;  8  id.,  283-4. 

'  Ibid.,  G57,  par.  1;  Ex  parte  Garland,  4  Wall.,  380. 


oo:i 


2  MILITARY  LAW. 


quantity  or  quality,  without  changing  its  species;  this  is  mitigation.^ 
luiprisonnieut,  tine,  forfeiture  of  pay,  and  suspension  are  punishments 
capable  of  mitigation.  As  an  instance  of  a  mitigation  both  in  quantity  and 
quality,  a  sentence  of  imprisonment  for  three  years  in  a  penitentiary  was 
held  to  be  mitigable  to  an  imprisonment  for  two  years  in  a  military  prison." 

A  punishment  in  itself  illegal  is  not  capable  of  mitigation.  Thus  where 
a  sentence  of  imprisonment  in  a  penitentiary  is  not  legally  authorized,  it 
cannot  be  made  valid  by  mitigating  this  imprisonment  to  confinement  in  a 
military  prison.  In  such  case  the  latter  will  be  equally  invalid  and  inopera- 
tive with  the  original  punishment.' 

A  punishment  cannot  be  pardoned  or  mitigated  under  this  Article  where 
it  has  been  once  duly  executed.  Where,  however,  a  sentence  has  been 
executed  only  in  part,  it  may  be  remitted  as  to  the  portion  remaining 

unexecuted.'' 

Where  a  sentence  consists  of  several  punishments,  the  reviewing  officer 
cannot  so  exercise  the  power  of  mitigation  as  to  exceed  in  any  instance  the 
maximum  punishment  established  by  law  and  orders.  Thus  he  would  not 
be  authorized  by  way  of  mitigation  to  reduce  a  confinement,  while  at  the 
same  time  adding  to  a  forfeiture  so  as  to  make  it  in  excess  of  the  maximum 
forfeiture  legally  allowable  for  the  offense.* 

Commutation — Where,  as  in  the  case  of  a  sentence  of  death,  dismissal, 
or  dishonorable  discharge,  there  is  no  lesser  form  or  degree  of  the  same 
punishment  to  which  a  sentence  can  be  reduced  by  way  of  mitigation,  mercy 
or  clemency  can  only  be  shown  by  way  of  commutation,  that  is,  by  a  substi- 
tution of  some  other  punishment  for  that  named  in  the  sentence.  The 
power  to  commute  (or  remit)  sentences  of  death  or  dismissal  is,  by  this 
Article,  reserved  to  the  President,  and  a  military  commandercannot  exercise 
such  power  even  where,  in  time  of  war,  he  is  authorized  to  approve  such  a 
sentence  and  carry  it  into  effect.' 

The  substitution  of  the  punishment  of  confinement  for  that  of  dishonor- 
able discharge,  imposed  by  sentence  of  court-martial,  would  not  of  course 
be  authorized  by  way  of  mitigation  (which  cannot  change  the  nature  of  the 
punishment),  but  may  be  effected  by  a  commutation  of  the  sentence  by  the 
President  accepted  by  the  soldier.' 

»  S»e  opinion  of  Judge-Advocate  General  published  in  G.  O.  71,  War  Department, 
1875-  I  Opins.  Att.-Gen.,  327:  4  id..  444.  It  may  be  noted  that  these  early  opinions  of 
the  Attorney-General  inacrurately  describe  tlie  substitution  of  a  lesser  punishment  for  a 
d^ath- sentence,  as  a  mitigation  ;  the  proceeding  being  properly  commutation. 

«  Di?.  J.  A.  Gen  ,131,  par.  5. 

i  Ibid  ,  132,  par.  11. 

*  Ibid..  130,  par.  3. 

5  iWd.,  133,  par.  19     See,  also,  tW(f.,  par.  20.  •  ..   .„r,o,r, 

«  Di<?.  J.  A.  Gen.,  129,  par.  1.  See.  also,  Washington  to  Gates,  Feb.  14,  1778,  Vol. 
VI  •  Writings  of  Washington,  374. 

'  Ibid.,  131,  par.  8.  See,  also,  par.  7,  ibid.  So  held  that  a  reviewing  commander 
was  not  authorized  to  commute  the  punishment  of  dishonorable  discharge,  and  that,  as 


THE  ARTICLES  OF    WAH.  553 

Abticle  113.  Every  judge-adoocate,  or  person  acting  as  such,  at  any 
Qeneral  court-inartiaL  shall,  with  as  7nuch  expedition  as  the  opportunity  of 
time  and  distance  of  place  may  admit,  forward  the  original  proceedings  and 
sentence  ot'  such  court  to  the  Judge- Advocate  General  of  the  Army,  in  whose 
office  they  shall  be  carefully  preserved. 

This  requirement  originated  iu  u  provision  of  the  Mutiny  Act  of  1750,' 
which  required  that  "every  acting  judge-advocate  should  send  up  the  pro- 
ceedings, witli  as  much  expedition  as  possible,  to  the  Judge-Advocate 
(reneral  in  London,  to  be  kept  and  preserved  in  his  office,  to  the  end  that 
persons  entitled  thereto  might  obtain  copies  thereof,  as  provided  for  in  the 
Act."  '  As  this  requirement  formed  a  part  of  the  Mutiny  Act,  and  so  did 
not  appear  in  the  xVrticles  of  1774,  it  was  not  embodied  in  the  American 
Articles  of  177G,  but  appeared  for  the  first  time  in  statutory  form,  as  the 
last  clause  of  Article  24  of  Section  14  as  amended  by  the  Resolution  of  Con- 
gress of  May  31,  178<».  In  this  form  it  was  re-enacted  as  the  first  clause  of 
No.  90  of  the  Articles  of  1806.  The  Judge-Advocate  General  of  the  Army 
is,  by  another  statute,'  made  the  legal  custodian  of  the  records  of  general 
courts-martial;  the  Congress,  in  this  respect,  having  adhered  to  a  practice 
well  established  in  the  British  service  at  the  time  of  the  adoption  of  the 
Federal  Constitution.' 

Article  114.  Every  party  tried  by  a  general  court-martial  shall,  upon 
demand  thereof,  made  by  himself,  or  by  any  person  in  his  behalf,  be  entitled 
to  a  copy  of  the  proceedings  and  sentence  of  such  court. 

The  right  of  an  accused  person  to  have  a  copy  of  the  proceedings  in  his 
case  was  first  recognized  by  statute  in  England  in  1748,  in  which  year  a 
clause  was  added  to  the  Mutiny  xVct  requiring  such  a  copy  to  be  furnished 
"  to  any  person  tried  by  the  same,  at  any  time  not  sooner  than  three  nor 
later  than  twelve  months  after  the  sentence  given,  and  whether  such  sen- 
tence be  approved  or  not."  '  For  a  reason  above  stated,'  this  requirement 
was  not  embodied  in  the  American  Articles  of  1776,  and  appeared  first  in 
statutory  form  as  the  third  clause  of  Article  24,  Section  14,  as  amended  by 
the  Resolution  of  May  31,  1786.  It  was  re-enacted  without  change  as  the 
last  clause  of  No.  90  of  the  Articles  of  1806. 

Procedure  under  the  Article. — Applications  for  copies  under  this  Article 
may  be  and  in  practice  commonly  are  addressed  in  the  first  instance  to  the 
Judge- Advocate  General,  who  thereupon  furnishes  the  copy,  certified  by  him 


such  punislunent  was  not  susceptible  of  mitiiTHtion,  it  could  not  legally  be  reduced 
under  this  Article.     Dicr.  J.  .■^-  Grt-n.,  LSI,  par.  7. 

Dishouorable  discharge  cannni  legally  be  mitigated  to  "  discharge  without  a  charac- 
ter."    The  latter  is  not  a  recognized  punishment.     Ibid.,  132,  par.  14. 

'  24  Geo.  II..  ch.  6,  sec.  8. 

'  Section  1199.  Revised  Statutes. 

»  Clode.  Mil.  Law.  153:  In  re  Mansergh.  1  B.  &  S.,  406. 

*  22  Geo.  II.,  oh.  5,  sec.  9. 

'  See  Article  113,  supra. 


554  MILITARY  LAW. 

as  correct,  at  the  expense  of  the  United  States,  provided  the  application  is 
made  by  the  accused  or  in  his  behalf.  If  not,  he  can  furnish  the  copy  only 
by  the  special  authority  of  the  Secretary  of  War.  Any  person  desiring  a 
cepy  of  the  record  of  a  court-martial,  or  of  any  portion  of  a  record,  who  is 
not  entitled  to  be  furuished  with  the  same  by  the  terms  of  this  Article, 
should  apply  therefor  to  the  Secretary  of  War,  stating  the  reason  for  his 
application,  in  order  that  it  may  appear  that  he  makes  the  same  in  good 
faith  and  for  a  proper  purpose.  If  the  application  is  ap]3roved  by  the  Secre- 
tary, it  will  be  referred  to  the  Judge- Advocate  General,  who  will  then  have 
the  copy  prepared  and  transmitted.' 

A  person  applying  for  the  copy  "in  behalf"  of  the  accused  should 
exhibit  some  satisfactory  evidence  that  he  duly  represents  the  accused,  as 
his  agent,  attorney,  or  otherwise.  Where  it  does  not  satisfactorily  appear 
that  the  party  is  applying  for  and  on  behalf  of  the  accused,  he  cannot  be 
furnished  with  the  copy,  as  of  right,  under  the  Article.  A  person  other  than 
the  accused,  applying  on  his  own  account,  is  not  entitled  to  the  copy.^ 

A  copy  of  the  proceedings  and  sentence  cannot  properly  be  furnished 
under  this  Article  until  the  same  have  been  finally  acted  upon  and  such 
action  has  been  promulgated  in  the  usual  manner.' 

The  accused  or  other  person  entitled  under  this  Article  to  be  furnished 
with  a  copy  of  a  record  of  trial  is  not  entitled  to  be  furnished  with  a  copy 
of  a  report  of  the  Judge- Advocate  General  made  upon  the  case.  To  receive 
this,  special  authority  must  be  obtained  from  the  Secretary  of  War.\ 

The  copy  of  the  "  proceedings  and  sentence  "  of  the  court,  with  which 
the  accused  is  entitled  to  be  furnished  under  this  Article,  does  not  include  the 
action  of  the  reviewing  authority  as  indorsed  u2)on  or  attached  to  the  record 
of  trial,  and  it  is  not  the  usage  to  include  this  in  the  copy.' 

The  furnishing  of  a  copy  of  a  record  of  a  general  court-martial  to  a 

'  Dig.  J.  A.  Gen.,  134,  par.  3.  It  is  an  established  general  rule  that  a  head  of  a 
department  of  the  Government  will  not  make  piil)lic  or  furnish  copies  of  contidenlial  offi. 
cial  reports  or  {)apers  the  disclosure  of  whicli  will  rather  prejudice  than  ))romote  the 
public  interests.  In  a  case  of  an  otHcer  of  the  Army  who.  having  been  dismissed  the 
service  by  sentence  of  court-martial,  applied  to  be  furnished  witli  copies  of ,  or  to  be 
allowed  to  examine,  the  report  of  tlie  .Judge-Advocate  General  and  the  lemarks  of  the 
General  commanding  the  Army,  in  liis  (;ase  advised  that  the  application  be  not  acceded 
to  by  the  Secretary  of  "War,  tlie  same  being  no  part  of  the  record  of  trial  of  the  officer, 
but  confidential  communications  addressed  to  the  President  through  the  Secretary  of 
"War.     Ibid.,  691,  par.  5. 

'  Dig.  J.  A.  Gen.,  134,  par.  2.  The  fact  that  the  applicant  is  a  member  of  tlie  family 
of  the  accused  does  not  entitle  him  to  the  copy  in  the  absence  of  evidence  that  he  applies 
at  the  instance  or  in  behalf  of  the  accused.  A  party  applying  in  behalf  of  "  friends  and 
creditors"  of  the  accused  held  not  entitled  to  a  copy  of  the  record  of  hi>^  trial.  So  held 
of  one  who  subscribed  his  application  merely  as  "attorney  at  law,"  without  showing 
that  he  was  authorized  to  act  for  the  accused.     Ibid. 

This  Article  does  not  authorize  the  furnishing  of  a  copy  of  the  record  of  trial  to  the 
•widow  of  the  accused  or  other  person  applying  after  his  decease.     Ibid.,  135,  par.  7. 

*  Ibid.,  133,  par.  1. 

*  Ibid.,  134,  par.  4;  see,  also,  note  1,  tupra. 

*  Ibid.,  135,  par.  8. 


THE  ARTICLES   OF    WAR.  555 

person  otlier  than  the  accused  and  not  applying  in  his  behalf  will,  as  a 
>'eijeral  rule,  be  authorized  by  the  Secretary  of  War  where  the  application 
is  evidently  made  in  the  interest  of  justice  and  the  copy  furnished  will 
clearly  subserve  a  good  and  desirable  purpose.  But  this  must  be  made  cer- 
tainly to  appear.' 

It  is  only  a  party  "  tried  by  a  general  court-martial  "  who  is  entitled  by 
the  Article  to  the  copy.  Parties  desiring  copies  of  records  of  cowr/.s-  of 
inquiry,  for  use  in  evidence  under  Article  121,  or  for  any  other  purpose, 
must  apply  to  the  Secretary  of  War,  as  above  indicated.  Such  copies,  how- 
ever, are  rarely  accorded,  except  for  use  under  Article  121.' 

Akticle  115.  A  court  of  iyiquiry  to  examine  into  the  nature  of  any 
transaction  of  or  accusation  or  imputation  against,  any  officer  or  soldier 
may  be  ordered  by  the  President  or  by  any  commanditig  officer  ;  but,  as  courts 
of  inquiry  may  be  perverted  to  dishonorable  pur i)Oses,  and  may  be  employed, 
in  the  hands  of  weak  and  envious  commandants,  as  engines  for  the  destruc- 
tion of  military  merit,  they  shall  never  be  ordered  by  any  commanding 
officer  except  upon  a  demand  by  the  officer  or  soldier  lohose  co7iduct  is  to  be 
inquired  of 

In  the  early  history  of  courts-martial,  not  only  during  the  period  prior 
to  their  statutory  recognition  by  the  passage  of  the  Mutiny  Act,  but  for 
more  than  a  century  subsequent  to  that  enactment,  the  functions  of  the 
court-martial  and  court  of  inquiry  differed  so  little  that  they  were  often 
combined  in  the  same  tribunal  for  the  purpose  of  prosecuting  an  investiga- 
tion which  would  now  be  committed  to  a  court  of  inquiry.'  Although 
recognized  at  an  earlier  date  by  custom  of  service,  the  first  authentic  in- 
stance of  the  appointment  of  a  court  of  inquiry  in  the  English  service  seems 
to  have  been  that  appointed  by  the  king  in  1746  to  investigate  the  disaster  to 
Sir  John  Cope's  command  at  the  battle  of  Prestonpans  during  the  Rebellion 
of  17-45.*  Clode,  in  his  ^filitary  Law,  cites  an  instance  in  1708  in  which  a 
court-martial  was  convened  for  the  purpose  of  investigating  the  conduct  of 
an  officer  of  Lord  Mark  Kerr's  Regiment.'  The  order  authorizing  the 
appointment  of  the  court  in  this  case  was  signed  by  Secretary  Walpole,  and 
the  report  of  its  proceedings  was  to  be  submitted  to  the  Duke  of  Marlborough 
as  Commander-in-Chief.  It  is  believed  that  courts-martial  retained  this 
jurisdiction,  and  were  empowered  to  conduct  investigations,  to  detect  guilty 
parties,  and  to  recommend  ])unishments,  for  a  long  time  after  these  tribunals 
had  received  statutory  recognition  and  had  begun  to  exercise  specific  juris- 
diction as  such.  This  is  evidenced  by  Article  2,  Section  10,  of  the  American 
Articles  of  1770,  which  authorizes  courts-martial  to  be  convened  in  the 

'  Die.  J.  A.  Gen.,  135.  par.  5:  see,  also,  note  1,  page  554,  ante. 

*  P'id..  par.  6. 

'  Clode,  Mil.  Law,  171.     See,  also,  the  cliapter  entitled  CorRTS  of  Inquirt. 

*7Wrf..  172. 

'  Ibid.,  171. 


556  MILITARY  LAW. 

artillery  to  take  jurisdiction  over  "differences  arising  amongst  themselves,  or 
in  matters  relating  solely  to  their  own  corps." 

Early  in  the  present  century  a  doubt  having  arisen  in  England  as  to  the 
authority  to  convene  courts-martial  for  the  sole  purpose  of  conducting 
investigations,  the  question  was  referred  to  the  Attorney-General  in  1803, 
and  his  opinion,  based  largely  upon  the  requirements  of  the  oath  prescribed 
for  members  of  courts-martial  in  the  Mutiny  Act,  was  adverse  to  their 
legalitv.' 

The  first  statutory  recognition  of  these  tribunals  in  the  United  States 
service  was  that  contained  in  Articles  25,  2G,  and  27  of  Section  14  of  the 
Articles  of  War  as  amended  by  the  Kesolutiou  of  Congress  of  May  31,  1786. 
These  provisions  were  embodied  in  the  revision  of  1800  as  Articles  91,  92, 
ftnd  93.  Under  the  authority  thus  conferred,  however,  courts  of  inquiry 
could  only  be  convened  upon  the  application  of  the  officer  or  soldier  whose 
conduct  was  to  be  investigated  by  them;  with  a  view  to  confer  upon  the 
President  power  to  convene  such  courts  at  his  discretion,  an  authority  which 
in  England  had  already  been  recognized  as  belonging  to  the  crown,"  a  clause 
to  that  effect  was  embodied  in  the  92d  of  the  Articles  of  1806. 

Article  115  authorizes  the  institution  of  a  court  of  inquiry  only  in  a 
case  of  an  "  officer  or  soldier,"  and  the  word  "  officer  "  as  employed  in  the 
Articles  is  defined  in  Section  1342,  Revised  Statutes,  to  mean  a  commissioned 
officer.  A  court  of  inquiry  cannot,  therefore,  be  convened  on  the  applica- 
tion, or  in  the  case,  of  a  person  who  is  not  an  officer  (or  soldier)  of  the  Army 
at  the  time.  Such  a  court  cannot  be  ordered  to  investigate  transactions  of, 
or  charges  against,  a  party  who,  by  dismissal,  discharge,  resignation,  etc., 
has  become  separated  from  the  military  service,  although  such  transactions 
or  charges  relate  altogether  to  his  acts  or  conduct  while  in  the  army.  A 
court  of  inquiry  cannot  be  ordered  in  a  case  of  an  "acting  assistant  sur- 
geon," who  is  not  an  officer  of  the  Army,  but  only  a  civil  employee.' 


'  I.  Clode.  Mil  Forces,  541. 

'Prior  to  the  enactment  of  the  Army  Act  of  1881,  courts  of  inquiry  as  such  were 
neither  authorized  nor  provided  for  in  the  annual  Mutiny  Acts.  They  had  long  been 
recognized  by  custom  of  service,  and  had  been  convened  from  time  to  time  by  letters 
under  the  royal  sign  manual  with  a  view  to  the  prosecution  of  investigations  such  as  are 
now  inquired  into  by  these  tribunals.  Courts  of  inquiry  were  first  expressly  authorized 
in  the  Encclish  Articles  of  1829. 

»  Dig.  J.  A.  Gen.,  135,  par.  1.  A  court  of  inquiry  is  not  a  court  in  the  legal  sense  of 
the  term,  but  rather  a  council,  commission,  or  board  of  investigation.  It  does  not 
administer  justice;  no  plea  or  specific  issue  is  presented  to  it  for  trial;  its  proceedings 
!ire  not  a  trial  of  guilt  or  innocence;  it  does  not  come  to  a  verdict  or  pass  a  sentence. 
For  purposes  of  investigation,  however,  a  court  of  inquiry  iti  this  country  is  clothed 
with  ample  powers,  and  in  an  important  rase  its  opinion  may  be  scarcely  less  significant 
or  even  final  than  that  of  a  court-martial.     Winthrop,  Mil.  Law,  ch.  24. 

Though  a  court  of  incjuiry  has  sometimes  been  compared  to  a  grand  jury,  there  is 
little  substantial  resemblance  between  the  two  bodies.  The  accused  appears  and  exam- 
ines witnesses  before  such  a  court  as  freely  as  before  a  court-martial,  and  its  proceed- 
ings are  not  required  to  be  kept  secret,  but  may  be  open  at  the  discretion  of  the  court. 
Dig.  J.  A.  Gen.,  136,  par.  3. 


TUE  ARTICLES   OF    WAR.  557 

A  court  of  inquiry  should  not  in  general  be  ordered  by  an  inferior  com- 
mander— a  post  or  regimental  commander,  for  example — where  the  charges 
required  to  be  investigated  are  not  such  as  an  inferior  court-martial  could 
legally  take  cognizance  of.  Courts  of  inquiry  convened  by  such  commanders 
are,  however,  of  rare  occurrence  in  our  service.' 

Although  neither  Article  88  nor  other  provision  of  the  code  specifically 
authorizes  the  challenging  of  the  members  of  a  court  of  inquiry,  yet.  in  the 
interests  of  justice  and  by  the  usage  of  the  service  in  this  country,  this  pro- 
ceeding is  permitted  in  the  same  manner  as  before  courts-martial.  Artit^le 
117  requires  that  members  of  courts  of  incjuiry  shall  be  sworn  "  well  and 
truly  to  examine  and  inquire,  according  to  the  evidence,  without  partiality, 
prejudice,"  etc. ;  and  it  is  the  sense  of  the  service  that  their  competency 
to  do  so  should  be  determined  by  the  same  tests  as  in  the  case  of  a  court- 
martial.' 

A  court  of  inquiry  has  no  power  to  punish  for  contempt.  Such 
power  of  this  nature  as  is  conferred  by  Article  86  is  restricted  in  terms  to 
courts-martial.  Moreover  a  court  of  inquiry,  not  being  in  a  proper  sense  a 
court,  cannot  exercise  the  strictly  judicial  function  of  punishing  contempts.' 

Abticle  116.  A  court  of  inquiry  shall  consist  of  one  or  more  officers,  not 
exceeding  three,  and  a  recorder,  to  reduce  the  proceeditigs  and  evidence  to 
writing.* 

Abticle  117.  The  recorder  of  a  court  of  inquiry  shall  administer  to  the 
members  the  following  oath  :  "  You  shall  well  and  truly  examine  and  inquire, 
according  to  the  evidence,  into  the  matter  now  before  you,  without  partiality, 
favor,  affection,  prejudice,  or  hope  of  reward:  so  help  you  God.'"  After 
which  the  president  of  the  court  shall  administer  to  the  recorder  the  following 
oath :  "  You,  A  B,  do  swear  that  you  will,  according  to  your  best  abilities, 
accurately  and  impartially  record  the  proceedings  of  the  court  and  the  evidence 
to  be  given  in  the  case  in  hearing :  so  help  you  God.'''  " 

Article  118.  A  court  of  inquiry,  and  the  recorder  thereof,  shall  have 
the  same  power  to  summon  and  examine  witnesses  as  is  given  to  courts-martial 
and  the  Judge-advocates  thereof.  Such  witnesses  shall  fake  the  saine  oath 
which  is  taken  by  witnesses  before  courts-martial,  and  the  party  accused  shall 


•Dig.  J.  A.  Gen..  136,  par.  2. 

«  Dig.  J.  A.  Gen.,  136.  par.  4.  See  Macomb.  §  204:  O'Brien.  292;  De  Hart.  278.  In 
the  Joint  Resolution  of  Congress  of  Feb.  13.  1874.  autb(»rizing  the  President  to  convene 
a  certain  special  court  of  inquiry,  it  was  "  jiroviiied  tliat  tbt-  accused  may  be  allowed 
the  same  right  of  challenge  as  allowed  by  law  in  trials  by  court-martial."  It  appears, 
however,  to  have  been  regarded  in  the  debate  on  this  Resolution  (see  Cong.  Rec  ,  vol.  2,' 
No8.  38.  40)  that  this  provision  was  unnecessary  to  entitle  the  party  to  the  privilege. 

'Dig.  J.  A.  Gen.,  137,  par.  5.  A  loo.se  observation  of  IIo\igh  (Authorities.  101  that 
"contempts  before  courts  of  inquiry  are  as  much  punishable  as  before  courts-martial  " 
has  been  carelessly  repeated  by  several  American  writers.  The  recent  English  writer, 
Clode,  correctly  states  the  law  (as  to  witnesses)  in  saying  (Mil.  and  Mar.  Law,  198)  that 
a  court  of  inquiry  "  has  no  power  to  punish  them  for  contumacy  or  silence." 

*See  Art.  115,  supra. 


558  MILITARY  LAW. 

he  permitted  to  examine  and  cross-examine  them,  so  as  fully  to  investigate  the 
circumstances  in  question. 

The  first  clause  of  this  Article  was  made  the  subject  of  Congressional 
enactment  in  1863,'  prior  to  which  date  the  court  had  power  to  summon 
witnesses  only.  The  requirements  of  the  Article  in  respect  to  the  oaths 
to  be  administered  to  witnesses  and  the  right  of  jjurties  to  cross-examine 
them  were  drawn  from  the  91st  and  93d  of  the  Articles  of  1806. 

Article  119.  A  court  of  inquiry  shall  not  give  an  opinion  on  the  merits 
of  the  case  inquired  of  unless  specially  ordered  to  do  so. 

An  opinion  given  by  a  court  of  inquiry  is  not  in  the  nature  of  a  sentence 
or  adjudication  pronounced  upon  a  trial.  The  accused,  upon  a  subsequent 
trial,  by  court-martial,  of  charges  investigated  by  a  court  of  inquiry,  cannot 
plead  the  proceedings  or  opinion  of  the  latter  as  a  former  trial,  acquittal,  or 
conviction.'' 

While  it  is  of  course  desirable  that  the  members  of  a  court  of  inquiry, 
directed  to  express  an  opinion,  should  concur  in  their  conclusions,  they  are 
not  required  to  do  so  by  law  or  regulation.'  The  majority  does  not  govern 
the  minority  as  in  the  case  of  a  finding  or  sentence  by  court-martial.  If  a 
member  or  a  minority  of  members  cannot  conscientiously  and  without  a 
weak  yielding  of  independent  convictions  agree  with  the  majority,  it  is  better 
that  such  member  or  members  should  formally  disagree  and  present  a  sepa- 
rate report  (or  reports)  accordingly.  The  very  disagreement  indeed  of 
intelligent  minds  is  a  material  and  important  fact  in  the  case,  and  one  of 
which  the  reviewing  authority  is  entitled  to  have  the  advantage  in  his  con- 
sideration of  and  action  upon  the  same." 

Where,  as  in  the  majority  of  cases,  the  inquiry  is  instituted  with  a  view 
of  assisting  the  determination,  by  the  President  or  a  military  commander, 
of  the  question  whether  the  party  should  be  brought  to  trial,  the  opinion  of 
the  court  will  properly  be  as  to  whether  further  proceedings  before  a  court- 
martial  are  called  for  in  the  case,  with  the  reasons  for  the  conclusions 
reached.  Where  no  such  view  enters  into  the  inquiry,  but  the  court  is  con- 
vened to  investigate  a  question  of  military  right,  responsibility,  conduct, 
etc.,  the  opinion  will  properly  confine  itself  to  the  special  question  proposed 
and  its  legitimate  military  relations.     A  court  of  inquiry,  composed  as  it  is 


1  Section  25,  Act  of  March  3,  1863  (12  Stat,  at  Large,  754). 

•  Disr.  J    A.  Gen.,  loT,  par.   1. 

»  Inlhe  case  of  the  court  of  inquiry  (composed  of  seven  general  officers)  on  the  Cmtra 
Convention,  in  1808,  tlie  members  who  dissented  from  the  majority  were  required  by  the 
convening  aulliority  to  put  on  record  their  opinions,  and  three  dissenting  Opinions  were 
accordingly  civen.  A  further  instance,  in  wiiich  two  of  the  five  members  of  the  court 
gave  each  a  separate  dissenting  opinion,  is  cited  by  Hough,  Precedents,  642.  Mainly 
upon  the  authority  of  the  former  case  both  Hough  (Precedents,  642)  and  Simmons 
{%  339)  hold  that  members  non-concurring  with  the  majority  are  entitled  to  have  their 
opinions  reported  in  the  record. 

*Dig.  .J.  A.  Gen.,  137,  par.  2. 


77/ A-  urn  CLE'S   OF    U'.IA'.  559 

of  military  men,  will  rarely  find  itself  called  upon  to  express  an  opinion  upon 
questions  of  a  purely  legal  character.' 

It  is  not  irregular,  but  authorized,  for  a  court  of  inquiry,  in  a  proper 
case,  to  reflect,  in  connection  with  its  opinion,  upon  any  improper  language 
or  conduct  of  the  accused,  prosecuting  witness,  or  other  person  appearing 
before  it  during  the  investigation.' 

Article  120.  T/ie  prococdijtg^  of  a  court  of  inquirn  iiiK.-il  he  autJienti- 
cated  bij  the  sitj)iat lives  of  the  recorder  and  ihc  president  thereof,  and  deliv- 
ered to  the  coniinanding  officer.^ 

Article  121.  The  proceedings  of  a  court  of  inqiiiry  may  he  admitted  as 
evidence  hy  a  covri-inarliaJ  in  cases  not  capital  nor  extending  to  the  dis- 
missal of  an  officer,  provided  that  the  circumstances  are  such  that  oral 
testimony  cannot  he  obtained.^ 

"While  the  proceeding.s  of  a  court  of  inquiry  cannot  be  admitted  as  evi- 
dence on  the  merits  upon  a  trial  before  a  court-martial  of  an  offense  for  which 
the  sentence  of  dismissal  will  be  mandatory  upon  conviction,'  it  has  been  held 
that  upon  the  trial  of  sucli  otfense,  as  upon  any  other,  such  proceedings,  prop- 
erly authenticated,  would  be  admissible  in  evidence  for  the  purpose  of  im- 
peaching the  statements  of  a  witness  upon  the  trial  who,  it  was  proposed  to 
show,  had  nuide  quite  different  statements  upon  the  hearing  before  the  court 

of  inquiry." 

Article  122.  Ifv.pou  marches,  guards,  or  in  qnarterx,  different  corps 
of  the  Army  happen  to  join  or  do  duty  together,  the  officer  highest  in  rank 
of  the  line  of  the  Army,  Marine  Corps,  or  militia,  by  commission,  there  on 
duty  or  in  quarters,  shall  command  the  luhole,  ajid  give  orders  for  what  is 
needful  to  the  service,  unless  otherwise  specially  directed  by  the  President, 
according  to  the  nature  of  the  case.' 

Articles  25,  30,  and  27,  Section  14,  of  the  British  Code  of  1774  contain 
provisions  respecting  the  relative  rank  of  officers  of  the  Household  Troops, 
or  personal  guards  of  the  sovereign,  when  serving  in  conjunction  with  otti- 
cers  of  other  regiments  of  the  British  military  establishment.  The  principle 
in  respect  to  the  right  of  command  therein  prescribed,  "that  the  senior  offi- 
cer present  for  duty  shall  command  the  whole,"  was  embodied  in  Articles 


'  Diff.  J.  A  Gen  .138.  par.  3.  In  an  exceptional  case,  that  of  thesrecial  coiirtof  iuqniiy 
authorizeil  by  Congress  in  the  Joint  Resolution  of  Feb.  1'?.  1ST4.  ibe  <  ouit  was  required 
to  express  an  opinion  not  only  upon  tbe  "  moral  "  but  upon  the  "technical  and  legal 
responsibility  "  of  the  ollioer  for  the  "  offenses  "  charged. 

-Ibid.,  nar.  4.  Tlius  the  court  of  inquiry  on  tbe  conduct  of  ihe  t^^eminnle  War 
adverted  in  its  opinion  unfavorably  upon  certuui  otfensive  and  reprehensible  language 
employed  against  each  other  bv  the  two  general  officers  concerned,  the  rne  in  his  state- 
ment "to  the  court  ami  the  otlier  in  liis  official  comuumicalions  which  were  put  in 
evidence.     See  G.  O.  13.  Hdqrs.  of  Army,  1837. 

*  See  Article  115.  s'/pr-i. 

*  Compare  G.  O.  33.  Dept.  of  Arizona,  1871. 

5  Dig.  J.  A.  Gen..  139.  See  this  ruling  published,  as  adopted  by  the  President,  in 
G.  C.  M.  O.  40,  Hdqrs.  of  Army,  1880. 


r 


60  MILITARY  LAW. 


25  and  26,  Section  13,  of  the  American  Code  of  1776,  and  was  there  applied 
to  the  case  of  trooi)S  of  tlie  United  States  serving  in  connection  with 
those  belonging  to  the  several  States.  In  the  Articles  of  1806,  Article  25, 
Section  13,  of  the  Code  of  1776  appears  as  Article  62  (Article  26  being 
omitted),  to  which  the  provision  which  is  embodied  in  the  last  clause  of 
Article  122  Avas  added;  the  added  clause  being  in  substance  an  express 
recognition  of  the  constitutional  powers  of  the  President  as  commander-in- 
chief,  but  in  form  an  excepting  clause  containing  a  direction  that  the  rule 
of  command  therein  prescribed  should  not  apply  "when  otherwise  specially 
directed  by  the  President  of  the  United  States,  according  to  the  nature  of 
the  case,"  ' 

'  The  terras  "  rank  "  aud  "command  "  have  received  executive  interpretation  in  para- 
graphs 7  and  13  of  the  Army  Regulations  of  189.") 

Military  rank  is  that  character  or  quality  bestowed  on  military  persons  which  marks 
their  station,  aud  confers  eligibility  to  exercise  command  or  authority  in  the  military 
service  within  the  limits  prescribed  by  law.  It  is  divided  into  degrees  or  grades,  which 
mark  the  relative  positions  and  powers  of  the  different  classes  of  persons  possessing  it. 
Par  7,  A.  R.  1895. 

Rank  is  generally  held  by  virtue  of  office  in  a  regiment,  corps,  or  department,  but  may 
be  conferred  independently  of  office,  as  in  the  case  of  retired  officers  aud  of  those  hold- 
ing it  by  brevet.     Par.  8,  A.  R.  1895. 

The  following  are  the  grades  of  rank  of  officers  and  non-commissioned  officers  : 

1.  Major- L^eneral.  11.  Quartermaster-sergeant  (regimental). 

2.  Brigadier-general.  12.  Ordnance,  commissary,  and  post  quar- 

3.  Colonel.  termaster-sergeant,    ho6i)ital      stew- 

4.  Lieutenant-colonel.  ard,  first-class  sergeant  of  the  Signal 

5.  Major.  Corps,    chief     musician,     principal 

6.  Captain.  musician,  chief  trumpeter,  and  sad- 
i.  First  lieutenant.  dler-sergearU. 

8.  Second  lieutenant.  13.  First  sergeant. 

9.  Cadet.  14.  Sergeant  and  acting  hospital  steward. 
10.  Sergeant-major  (regimental).  15.  Corporal. 

In  each  grade  date  of  commission,  appointment,  or  warrant  determines  the  order  of 
precedence.     Par  9,  A.  R.  1895. 

A  determination  by  the  legislative  and  executive  branches  of  the  Government  as  to 
the  relation  or  superior  authority  among  military  officers  is  conclusive  upon  the  judiciary. 
De  Ceiis  vs.  U.  S.,  13  C.  Cls.  R.,  117. 

Command  is  exercised  by  virtue  of  office  and  the  special  assignment  of  officers  hold- 
ing military  rank  who  are  eligible  by  law  to  exercise  command.  Without  orders  from 
competent  authority  an  officer  cannot  put  himself  on  duty  by  virtue  of  his  commission 
alone,  except  as  contemplated  in  the  24th  and  122d  Articles  of  War.  Par.  13,  A.  R. 
1895. 

The  following  are  the  commands  appropriate  to  each  grade  ; 

1.  For  a  captain,  a  company. 

2.  For  a  major  or  lieutenant-colonel,  a  battalion  or  squadron. 

3.  For  a  colonel,  a  regiment. 

4.  For  a  brigadier-general,  two  regiments. 

5.  For  a  major-general,  four  regiments.     Par.  14,  A.  R.  1895. 

The  functions  assigned  to  any  officer  in  these  regulations  by  title  of  office  devolve 
upon  the  officer  acting  in  his  place,  except  when  otherwise  specified.  An  officer  in  tem- 
porary command  shall  not,  except  in  urgent  cases,  alter  or  annul  the  standing  orders  of 
the  permanent  commander  without  authority  from  the  next  higher  commander.  Par. 
15,  A.  R.  1895. 

An  officer  who  succeeds  to  any  command  or  duty  stands  in  regard  to  his  duties  in  the 
same  situation  as  his  predecessor.  The  officer  relieved  will  turn  over  to  his  successor  all 
orders  in  force  at  the  time  and  all  the  public  property  and  funds  pertaining  to  his  com- 
mand or  duty,  and  will  receive  therefor  duplicate  receipts  showing  the  coHdition  of  each 
article.     Par.  16,  A.  R.  1895. 


THE  AiiTlCLE8   OF    WAli.  561 

Article  123.  In  all  matters  relating  to  the  rank,  duties,  and  rights  of 
officers  the  same  rules  and  regulations  shall  apjdy  to  officers  of  the  Regular 
Army  and  to  volunteers  commissioned  in  or  mustered  into  said  service, 
under  the  laws  of  the  United  tStates,  for  a  limited  period.' 

This  provision  tirst  appeared  in  statutory  form  as  Section  2  of  the  Act 
of  March  2,  18tJ7.'  It  was  embodied  witliout  change  as  Article  123  of  the 
revision  of  1874. 

Article  124.  Officers  of  the  militia  of  the  several  States  when  called 
ijito  the  service  of  the  United  States  shall,  on  all  detachments,  courts-martial, 
and  other  duty  wherein  they  may  be  employed  in  conjunction  with  the  regular 
or  volunteer  forces  of  the  United  States,  take  rank  next  after  all  officers  of 
the  like  grade  in  said  regular  or  volunteer  forces,  notiuithstanding  the  com- 
missions  of  such  militia  officers  may  he  older  than  the  commissions  of  the 
said  officers  of  the  regular  or  volunteer  forces  of  the  United  States. 

The  provision  embodied  in  this  Article,  though  derived  in  its  present 
form  from  an  enactment  of  relatively  recent  date/  is  in  substance  a 
re-enactment  of  a  princi])le  well  known  to  British  military  practice,  which 
regulates  the  relative  rank  of  officers  of  the  regular  establishment  when 
serving  with  detachments  of  colonial  forces.  The  provision  in  question  will 
be  found  in  Section  19  of  the  British  Code  of  1774,  which  relates  to  the 
relative  rank  of  tlie  officers  of  the  British  troops  serving  in  America  in  con- 
junction with  the  several  contingents  of  troops  furnished  by  the  colonies  in 
the  wars  prior  to  the  outbreak  of  the  Revolution. 

Article  125.  In  case  of  the  death  of  any  officer,  the  major  of  his  regi- 
ment, or  the  officer  doing  the  major's  duty,  or  the  second  officer  in  command 
at  any  post  or  garrison,  as  the  case  may  be,  shall  immediately  secure  all  his 
effects  then  in  camp  or  quarters,  and  shall  make,  and  transmit  to  the  office 
of  the  Department  of  War,  an  inventory  thereof. 

This  provision  appeared  as  the  first  clause  of  Article  1,  Section  17,  of 
the  British  Code  of  1774,  as  Article  1,  Section  15,  of  the  American  Code  of 
1770,  and  as  No.  94  of  the  Articles  of  180G.  This  Article,  in  connection 
with  the  two  preceding  Articles,  provides  for  the  securing  of  the  effects  of 
deceased  officers  and  soldiers,  making  inventory  of  the  same,  and  accounting 
for  them  to  the  proper  legal  representative,  etc.  These  Articles  have  special 
reference  to  cases  of  military  persons  who  die  while  in  active  service  in  tht; 
Held  or  at  remote  military  posts,  and  their  provisions  apply  onlv  to  such 
effects  as  are  left  by  the  deceased  "  in  camp  or  quarters."  An  attempt  by 
the  commander,  etc.,  to  secure  effects  left  elsewhere  would  not  be  within 

'  For  a  discussion  of  this  subject  in  its  application  to  court-martial  procedure,  see  the 
chapters  entitled  respectively  The  Constitution  of  Courts-maktial,  Thk  Compo- 
sition OK  CouKTS-MARTiAL,  and  TuK  INCIDENTS  OF  THE  Tkial.  See,  also,  notes  to 
Article  122,  supra. 

*  14  Stat,  at  Large.  435. 

»  Section  2.  Act  of  March  2,  1862  (14  Stat,  at  Large,  430). 


562  MILITARY  LAW. 

the  authority  here  given,  and  might  subject  the  officer  to  the  liability  of  ar 
administrator;  such  a  proceeding  would  not,  therefore,  be  advisable.'  TJpori 
accounting  to  the  duly  qualified  legal  representative,  as  directed  in  the 
Article,  the  responsibility  of  the  officer  is  discharged,  and  it  remains  for  the 
representative  of  the  deceased  to  dispose  of  the  property  according  to  the 
law  applicable  to  the  case." 

Aeticle  126.  In  case  of  the  death  of  anij  soldier,  the  commanding  officer 
of  his  troop,  battery,  or  company  shall  immediately  secure  all  his  effects  then 
in  camp  or  quarters,  and  shall,  in  the  presence  of  tioo  other  officers,  make  an 
inventory  thereof,  which  he  shall  transmit  to  the  office  of  the  Department  of 

War. 

This  appeared  as  Article  2,  Section  17,  of  the  British  Code  of  1774,  as 
Article  2,  Section  15,  of  the  American  Code  of  1776,  and  as  No.  95  of  the 
Articles  of  1806.= 

Article  127.  Officers  charged  with  the  care  of  the  effects  of  deceased 
officers  or  soldiers  shall  account  for  atid  deliver  the  same,  or  the  proceeds 
thereof,  to  the  legal  representatives  of  such  deceased  officers  or  soldiers. 
And  no  officer  so  charged  shall  be  permitted  to  quit  the  regiment  or  post 
until  he  has  deposited  in  the  hands  of  the  commanding  officer  all  the  effects 
of  stich  deceased  officers  or  soldiers  not  so  accounted  for  and  delivered.* 

Article  128.  Tlie  foregoing  articles  shall  he  read  and  published  once 
in  every  six  months  to  every  garriso7i,  regiment,  troop,  or  company  in  the 
service  of  the  United  States,  and  shall  be  duly  observed  and  obeyed  by  all 
officers  and  soldiers  in  said  service. 

Article  1,  Section  20,  of  the  Britisli  Code  of  1774  contained  the  require- 
ment that  the  Articles  of  War  should  be  read  to  the  troops  once  in  two 
months,  and  this  provision  was  embodied  as  Article  1,  Section  19,  in  the 
American  Code  of  1776.  The  clause  requiring  the  Articles  to  be  read  every 
two  months  was,  in  Article  101  of  the  Code  of  1806,  modified  so  as  to  require 
such  reading  once  in  six  months;  in  this  form  the  Article  was  embodied  in 
the  revison  of  1874. 

Section  1343.  All  persons  who,  in  time  of  war,  or  of  rebellion  against 
the  supreme  authority  of  the  United  States,  shall  be  found  lurking  or  acting 
as  spies  in  or  about  any  of  the  fortifications,  posts,  quarters,  or  encamp- 


'  Compare  Samuel,  659  :  Hough  (Practice),  558. 

'  Dig.  .J.  A.  Gen..  139,  par.  1.  A.  military  employee  of  the  United  States  service 
liaviuL'-'^diecl  in  the  service,  his  remains,  at  the  request  of  his  relatives,  were  sentto  them 
on  a  Mississii)pi  steamboat.  Wages  being  due  tf)  the  employee  at  the  time  of  his  death, 
the  disbursing  officer  paid  out  of  these  the  charges  of  the  transportation,  and  turned 
over  the  bnlance  to  the  man's  lieir.-j.  Held,  in  view  of  the  tenor  and  effect  of  this  Arti- 
cle, that  th(;  disposition  of  tlie  funds  in  this  case  was  erroneous,  and  thai  the  full  wages 
due  r without  deduction)  should  have  been  accounted  for  to  the  "  legal  representatives" 
of  the  rlecea.sed.     Ibid.,  jtar.  2. 

'  See  Article  125,  gnpra. 

*  See  Articles  125  and  126,  supra. 


THE  ARTICI.ES   OF    WAR.  o63 

meiits  of  any  of  the  armies  of  the  United  States,  or  elsewhere,  shall  be 
triable  by  a  general  conrt-rnartial  or  by  a  military  commission,  and  shall, 
on  conviction  thereof,  snffer  death. 

Section  lo43  is  one  of  the  few  provisions  of  our  law  authorizing  the 
trial,  in  time  of  war,  of  cirilifais  by  military  courts.  The  majority,  how- 
ever, of  the  persons  brought  to  trial  as  spies  during  the  late  war  v/ere  mem- 
bers of  the  army  of  the  enemy.  The  gravamen  of  the  offense  of  the  spy  is 
the  treachery  or  deception  practiced — the  being  in  disguise  or  acting  under 
false  pretenses.'  An  officer  or  soldier  of  the  enemy  discovered  *'  lurking" 
in  or  near  a  camp  or  post  of  our  army  disguised  in  the  uniform  or  overcoat 
of  a  United  States  soldier  is  prima  facie  a  spy,  and  liable  to  trial  as  such. 
So  an  officer  or  soldier  of  the  enemy  who  without  authority  and  covertly 
penetrates  within  our  lines,  disguised  in  the  dress  of  a  civilian,  may  ordinarily 
be  presumed  to  have  come  in  the  character  of  a  spy,  unless  by  satisfactory 
evidence  tliat  he  came  for  some  comparatively  venial  purpose,  as  to  visit  his 
family,  and  not  for  the  purpose  of  obtaining  information,  he  may  rebut  the 
presumption  against  him  and  show  that  his  offense  was  a  simple  violation  of 
the  laws  of  war." 

Where  an  officer  of  the  enemy's  army,  arrested  while  lurking  in  the 
State  of  New  York  in  the  disguise  of  citizen's  dress,  was  shown  to  have 
been  in  the  habit  of  passing,  for  hostile  purposes,  to  and  from  Canada, 
where  he  held  communication  with  agents  of  the  enemy  and  conveyed 
intelligence  to  them,  held  that  he  was  amenable  to  trial  as  a  spy  before  a 
military  court  under  the  statute.' 

An  officer  of  the  enemy's  army,  having  come  secretly  within  our  lines, 
proceeded  from  Baltimore  through  a  part  of  the  country  containing 
numerous  military  posts,  etc.,  to  Detroit,  where  he  entered  Canada,  com- 
municated with  the  enemy's  agents  there  and  received  from  them  letters  to 
be  conveyed  to  Richmond.  On  his  return,  while  traveling  under  an  assumed 
name,  and  disguised  by  citizen's  dress  and  an  artificial  coloring  of  the  hair, 
he  was  recognized  and  arrested,  and  upon  his  arrest  destroyed  at  once  his 
papers.  It  was  held  that  he  might  properly  be  brought  to  trial  and  his 
offense  investigated  under  a  charge  of  being  a  spy,  and  that  his  claim  that 
he  was  merely  a  bearer  of  official  dispatches  was  entitled  to  but  slight  con- 
sideration in  view  of  the  fact  that  he  had  taken  the  first  opportunity  to 
destroy  the  evidence  on  which  such  claim  was  based.* 

Where  a  soldier  of  the  enemy's  army,  separated  from  it  on  its  retreat 
from  Maryland  in  18G4,  was  arrested,  after  wandering  about  in  disguise 
within  our  lines  for  a  month,  seeking  for  an  opportunity  to  make  his  way  to 

'  Halleck.  Int.  Law.  406-7. 
'  Dig.  J.  A.  Geu.,  708,  par.  1. 
*  Ihid.,  par.  2. 
« Ibid. ,  709,  par.  3. 


564:  MILITARY  LAW. 

the  enemy's  forces  and  join  his  regiment,  it  was  held  that  he  was  not  prop- 
erly chargeable  with  the  offense  of  being  a  spy,  but  should  be  treated  as  a 
prisoner  of  war.' 

A  mere  violation  of  the  law  of  war  prohibiting  intercourse  between 
belligerents,  committed  by  a  civilian  in  coming  without  authority  within 
our  lines  from  the  enemy's  country,  cannot  properly  be  regarded  as  attach- 
ing to  him  the  character  of  a  spy.' 

The  spy  must  be  taken  in  flagrante  delicto.  If  he  succeeds  in  making 
his  return  to  his  own  army  or  country,  the  crime,  according  to  a  well-settled 
principle  of  public  law,  does  not  follow  him;  and  if  subsequently  captured 
in  battle  or  otherwise,  he  cannot  properly  be  brought  to  trial  as  a  spy.' 

•  Dig.  J.  A.  Gen.,  709,  par.  4. 
«  Ibid.,  710,  par.  5. 

'  Ibid.,  par.  6.     The  leading  case  on  this  point  in  this  country  is  In  the  Matter  of 
Martin,  reported  in  45  Barb.,  142,  and  31  How.  Pr.,  328. 


APPENDICES. 


A.  THE   PRINCE    RUPERT    ARTICLES. 

B.  THE   BRITISH    ARTICLES   OF    1874. 

C.  THE   AMERICAN    ARTICLES   OF   1776. 

D.  THE   AMENDMENTS   OF   1786. 

E.  THE   ARTICLES   OF    1806. 

F.  FORMS   OF   CHARGES. 

(i.  FORMS   OF   PLE.\S.    ETC. 

H.  FORM   OF   RECORD:    GENERAL   COURT-MARTIAL. 

I.  FORM   OF   RECORD:    SUMMARY  COURT. 

J.  FORM   OF   RECORD  :    FIELD-OFFICER'S   COURT. 

K.  FORM   OF   RECORD:   GARRISON    AND    REGLMENTAI-   COOmU 

L.  FORM    OF  RECORD:     RETIRING    BOARD. 

M.  FORM   OF   RECORD  :     BOARD   OF   EXAMINATION. 

N.  FORM    OF   RETURN    TO    THE    WRIT   OF   HABEAS   CORPUS. 

O.  MISCELLANEOrS    FORMS. 

P.  MAXIMUM   PUNISHMENT  ORDER. 

565 


APPENDIX  A. 

THE  PRINCE  RUPERT  ARTICLES.' 

ARTICLES    AND    RULES    FOR    THE    BETTER    GOVERNMENT 

OF   HIS   MAJESTIES   FORCES   BY   LAND   DURING 

THIS   PRESENT   WAR.' 

PUBLISHED   BY   HIS   MAJESTIES   COMMAND. 

MDCLXXIII. 
DUTIES    TO    ALMIGHTY    GOD. 

Article  I.  All  Officers  and  Souldiers  (not  having  just  impediment)  shall 
diligently  frequent  divine  service  and  sermon,  on  Sundays,  and  other  days, 

'  These  Articles  appear  in  Volume  XV  of  the  Parliamentary  Papers,  1867,  p.  238, 
accompsinied  by  the  following  note,  presumably  by  Mr.  Clode,  the  author  of  the 
"  Military  Forces  of  the  Crown  ": 

"  These  Articles,  at  the  lime  of  their  promulgation,  gave  rise  to  much  controversy  in 
the  House  of  Commons.  In  the  debate  on  the  resolution  of  the  standing  army  being  u 
grievance,  Mr.  Secretary  Coventry  explained  the  origin  of  these  Articles.  '  Martial  law,' 
he  said,  '  then  was  the  same  as  it  had  ever  been.' 

'•  'In  Lord  Stafford's  command,  and  the  Earl  of  Holland's,  where  he  disbanded  the 
northern  army  and  that  of  Lord  Essex's  army  (we  may  learn  of  our  enemies),  these 
were  compared  with  all  Articles,  and  the  best  were  extracted,  and  you  will  tind  there 
no  French  Articles.'  They  were  only  to  be  executed  when  the  army  was  abroad,  and  then 
the  king's  name  was  used.*  They  were  issued  by  Prince  Rupert's  authority,  and  would 
determine  with  his  commission. f  The  fact  that  they  were  issued  bv  Prince  Rupert,  and 
not  by  the  king,  received  a  singular  confirmation,  fiom  the  Articles  not  being  found  in 
the  State  Paper  Othce.  though  I  have  searched  for  tliem  in  the  year  1673.  ^The  copy 
printed  here  is  from  what  purports  to  be  an  oriirinal  i)rint  of  the  Articles  on  thirty- 
one  folio  pages,  and  which  was  brought  to  the  War  Office  in  1859  by  one  of  the  poor 
brethren  of  the  Charter  House. 

'■  These  Articles  must  be  distinguished  from  a  '  Proclamation  issued  by  Charles  II.  by 
Order  in  Council  of  the  6th  of  December,  1672,'  and  which  was  presented  as  a  griev- 
ance by  the  House  of  Commons.  Tlie  proclamation  was  for  preventing  of  disorders 
that  m.iy  be  c.mmitted  by  soldiers,  and  is  to  be  found  as  No.  305  of  State  Papers  Proc- 
lamations, 1672 

"  Tlie  Council  Books  contain  the  following  entry: 

'"  .\t  the  Court  of  Wliitehall,  this  6th  Dec.  16?2. 
" '  Prp'sent  : 

••  '  The  Kind's  Most  Exoellent  Mati'  &c.  SiC. 
"  '  This  (lay  his  Ma""  Proclamation  for  preventing  of  disorders  that  may  be  committed  by  soldiei-s 
bein?  read  at  the  Board,  was  approved  and  signed  by  his  Ma«'«,  and  accordingly  ordered  to  be  printed 
•inil  piit)lished.' "'  t 

*  Tlie  "  present  war  "  here  referred  to  is  that  between  England  and  Holland,  which 
began  on  March  17,  1672,  and  was  terminated  by  the  Treaty  of  Westminster  on 
February  9.  1674. 

•  4  Parliamentary  History,  605. 

+  Ihid..  619. 

X  See,  also,  Manual  of  Military  Law,  p.  8;  Clode,  Military  Law,  p.  15. 

567 


568  APPENDIX  A. 

especially  festivals,  or  days  set  apart  for  publick  fasting  and  humiliation,  in 
such  places  as  shall  be  appointed  for  the  Regiment  wherein  they  serve. 
And  for  those  who  either  wilfully  or  negligently  absent  themselves  from 
divine  service  or  sermon,  or  else,  being  present,  do  behave  themselves 
undecently  or  irreverently  during  the  same;  if  they  be  Officers,  they  shall 
be  severely  reprehended  at  a  Court-martial;  but  if  Souldiers,  they  shall  for 
every  such  first  offence,  forfeit  each  num  1'2  pence,  to  be  deducted  out  of 
his  next  pay;  and  for  the  second  offence,  shall  forfeit  12  pence,  and  be  laid 
in  Irons  for  12  hours.  And  for  every  like  offence  afterwards,  shall  suffer 
and  pay  in  like  manner. 

Article  2.  During  the  time  of  divine  service,  publick  prayer,  and 
sermon,  as  aforesaid,  if  any  sutler,  or  seller  of  ale,  beer,  wine  or  any  other 
drinks,  bread,  victuals,  or  other  Commodities  or  merchandize  whatsoever, 
attending  the  Army,  shall  put  or  set  any  such  thing  to  sale,  he  shall  forfeit 
the  full  value  thereof,  for  the  use  of  the  poor. 

Article  3.  Whosoever  shall  use  anv  unlawful  Oath  or  Execration 
(whether  Officer  or  Honldier)  shall  incur  the  same  penalty  as  is  exprest  in 
the  1st  Article. 

Article  4.  If  any  Officer  or  Souldier,  shall  presume  to  blaspheme  the 
holy  and  undivided  Trinity,  or  the  Persons  of  God  the  Father,  God  the  Son, 
or  God  the  Holy  Ghost,  or  shall  presume  to  speak  against  any  known  Article 
of  the  Christian  Faith,  he  shall  have  his  tongue  burned  through  with  a  red 
hot  Iron. 

Article  5.  If  any  Officer  or  Souldier  shall  abuse  or  prophane  any  place 
dedicated  to  the  "Worship  of  God,  or  shall  offer  violence  to  any  Chaplain  of 
the  Army,  or  any  other  Minister  of  God's  Word,  he  shall  suffer  such 
punishment,  as  shall  be  inflicted  on  him  by  a  Court-martial. 

But  whoever  shall  take  any  of  the  Utensils,  or  Ornaments,  belonging,  or 
dedicated  to  God's  Worship  in  any  Church  or  Chappel,  shall  suffer  death 
for  the  fact. 

Article  6.  After  the  service  of  God  Almighty,  all  Officers  and  Souldiers 
shall  serve  Us  faithfully  to  the  best  of  their  skill,  power,  and  understanding. 
And  to  that  purpose,  every  one  of  them,  of  what  quality  or  condition  soever, 
shall  for  himself  take  the  following  Oath,  which  shall  be  administered  by 
such  person  or  persons,  and  in  such  places,  as  Our  Self  or  Our  General  shall 
appoint. 

DUTIES    TO    HIS    SACRED    MAJESTY,    AND    KINGLY    GOVERNMENT. 

The  Oath  of  Fidelity,  to  be  taken  by  every  Officer  and  Souldier  in  the 
Army : 

I,  A.  B.,  do  Swear  to  be  true  and  faithful  to  my  Soveraign  Lord  King 
Charles,  and  to  His  Heirs  and  lawful  SncceBsors;  And  to  be  obedient  in 


THE  PRINCE  RUPERT  ARTICLES.  569 

all  things  to  his  General  or  Lieutenant  General,  for  the  time  being;  And  will 
behave  myself  obediently  towards  my  Superiour  Oflicers,  in  all  they  shall 
command  me  for  His  Majesties  Service.  And  I  do  further  Swear,  That  I 
will  be  Jk  true,  faithful,  and  obedient  Servant  and  Scjuldier,  every  way  per- 
forming my  best  endeavours  for  His  Majesties  Service,  obeying  all  Orders, 
and  submitting  to  all  such  Rules  and  Articles  of  A\'ar,  as  are,  or  shall  be, 
established  by  His  Majesty. 

So  help  me  God,  etc. 

Article  7.  No  Officer  or  Souldier  shall  use  any  traiterous  words  against 
the  sacred  Person  of  the  King's  most  Excellent  Majesty,  upon  pain  of  death. 

Article  8.  Whosoever  shall  hold  correspondence  with  any  of  Our 
Enemies,  or  shall  give  them  advice  or  intelligence,  either  by  letters, 
messages,  signs,  or  tokens,  or  any  manner  of  way  whatsoever,  shall  suffer 
death  for  it. 

And  whatever  Regiment,  Troop,  or  Company  shall  treat  with  the 
Enemy,  or  enter  into  any  condition  with  them,  without  Our  leave,  or  leave 
of  Our  General,  or  of  the  chief  Commander  in  his  absence;  the  Officers  of 
such  Regiment,  Troop,  or  Company,  who  are  found  guilty,  shall  dye  for  it; 
and  of  the  Souldiers  who  shall  consent  thereunto,  every  tenth  man  by  lot 
shall  be  hanged,  and  the  rest  shall  be  punished  at  the  discretion  of  Onr 
General  Court-martial.  But  whatever  Officers  or  Souldiers  can  prove,  that 
they  did  their  utmost  to  resist  and  avoid  such  a  treaty,  and  were  no  war 
partakers  of  the  crime,  they  shall  not  only  go  free,  but  shall  also  be 
rewarded  for  their  constancy  and  fidelity. 

Article  9.  Wiioever  shall  go  about  to  entice  or  perswade,  either  Officer 
or  Souldier,  to  joyn  or  engage  in  any  traiterous  or  rebellious  act,  either 
against  Our  Royal  Person  or  Kingly  (Government,  shall  suffer  death  for  it : 
And  whoever  shall  not  reveal  to  his  superiour  Officer  such  a  conspiracy  or 
intended  rebellion,  so  soon  as  ever  it  shall  come  to  his  knowledge,  shall  be 
judged  equally  guilty  with  the  contrivers  of  such  a  plot  or  conspiracy,  and 
consequently  shall  suffer  the  same  penalty. 

Article  10.  Wiioever  shall  presume  to  violate  Our  Safe-guard,  Safe- 
conduct,  or  Protection  (knowing  the  same)  shall  suffer  death  or  such  other 
punishment  as  shall  be  inflicted  upon  him  by  Onr  (reneral  Court-martial. 

DUTIES    TOWARDS    SUPERIOUR    OFFICERS    AND     COMMANDERS. 

Article  11.  If  any  Officer  or  Souldier  shall  behave  himself  disrespectfully 
towards  Oiir  General,  Lieutenant  (reneral,  or  other  Chief  Commander  of 
the  Army,  or  speak  words  tending  to  his  harm  or  dishonour,  he  shall  be 
punished  according  to  the  nature  and  quality  of  the  offence,  by  the  Judg- 
ment of  Our  (Jeneral  Court-martial. 

Article   12.    He,    who   in   the   presence   of   Our   General,    Lieutenant 


570  APPENDIX  A. 

General,  or  other  Commander  in  Chief,  sliall  draw  his  Sword,  with  a  pur- 
pose to  do  any  Officer,  or  any  of  his  fellow  Sonldiers,  a  mischief,  shall  suffer 
such  punishment  as  a  Court-martial  shall  think  fit  to  inflict  upon  him  for 

the  same  offense. 

Article  13.  Whoever  shall  presume  to  violate  any  Safe-conduct  or  Pro- 
tection, given  by  Our  General,  Lieutenant  General,  or  other  Commander  in 
Chief  of  Our  Forces  (knowing  the  same)  shall  suffer  death,  or  such  other 
punishment  as  shall  be  inflicted  upon  him  by  Our  General  Court-martial. 

Article  14.  If  any  number  of  Souldiers  shall  presume  to  assemble  to  take 
council  amongst  themselves  for  the  demanding  their  pay,  any  inferiour 
Officers  accessary  thereunto  shall  suffer  death  for  it,  as  the  heads  and  ring- 
leaders of  such  mutinous  and  seditious  meetings;  and  the  Souldiers  shall  be 
punished,  either  with  death  or  otherwise,  at  the  discretion  of  Our  General 
Court-martial.  And  if  any  Captain,  being  privy  thereunto,  shall  not  sup- 
press the  same,  or  complain  of  it,  he  shall  likewise  be  pnnished  with  death 
or  otherwise,  as  Our  General  Court-martial  shall  think  fit. 

Article  15.  No  officer  or  Souldier  shall  use  any  words  tending  to 
sedition,  mutiny,  or  uproar,  upon  pain  of  suffering  such  punishment  as  shall 
be  inflicted  on  him  by  a  Court-martial.  And  whoever  shall  hear  any 
mutinous  or  seditious  words  spoken,  and  shall  not  with  all  possible  speed 
reveal  the  same  to  his  superiour  Officers  or  Commanders,  shall  be  punished 
as  a  Court-martial  shall  think  fit. 

Article  16.  If  any  inferiour  Officer  or  Souldier,  shall  refuse  to  obey  his 
superiour  Officer,  or  shall  quarrel  with  him,  he  shall  be  cashier'd,  or  suffer 
such  punishment  as  a  Court-martial  shall  think  fit.  But  if  any  Souldier 
shall  presume  to  resist  any  Officer  in  the  execution  of  his  Office,  or  shall 
strike,  or  lift  up  his  hand  to  strike,  or  shall  draw,  or  offer  to  draw,  or  lift 
up  any  weapon  against  his  superiour  Officer,  upon  any  pretense  whatsoever, 
he  shall  suffer  death,  or  other  condign  punishment,  as  our  General  Court- 
martial  shall  think  fit. 

DUTIES    IN"    MARCHING    OR    IN    ACTION". 

Article  17.  Every  Souldier  shall  keep  silence  when  the  Army  is  march- 
ing, embattelling,  or  taking  up  their  quarters  (to  the  end  that  their  Officers 
may  be  heard,  and  their  Orders  executed)  upon  pain  of  imprisonment,  or 
such  other  punishment  as  a  Court-martial  shall  think  fit,  according  to  the 
circumstances  and  aggravation  of  the  fact. 

Article  18.  He  who  shall  in  anger  draw  his  sword,  whilst  his  Colours  are 
flying,  either  in  battel,  or  upon  the  march,  unless  it  be  against  the  Enemy, 
shall  suffer  such  punishment  as  a  Court-martial  shall  think  fit. 

Article  19.  Wlien  any  march  is  to  be  made,  every  man  who  is  sworn, 
shall  follow  his  Colours,  and  whoever  shall  (without  leave)  stay  behind,  or 


THE  PRINCE  RUPERT  ARTICLES.  571 

depart  above  a  mile  from  the  Camp,  or  out  of  the  Army,  without  license, 
shall  saffer  such  punishment  as  shall  be  inflicted  upon  him  by  a  Court- 
martial. 

Article  20.  When  the  Army,  or  any  part  of  them,  shall  march  through 
or  lodge  in  the  country,  none  of  them  shall  extort  free  quarter  or  money 
from  them,  or  shall  commit  any  waste  or  spoil,  or  cut  down  fruit-treeo, 
deface  walks  of  trees,  parks,  warrens,  fish-ponds,  houses  or  gardens,  tread 
down  or  otherwise  destroy  standing  corn  in  tlie  ear,  neither  shall  they  jmt 
their  horses  into  meadows  without  leave  from  their  chief  Officer,  upon  pain 
of  severe  punishment.  But  if  any  Officer  or  Souldier  shall  wilfully  burn 
any  house,  barn,  stack  of  corn,  hay,  or  straw,  or  any  ship,  boat,  or  carriage, 
or  anything  which  may  serve  for  the  provision  of  the  Army,  without  order 
from  the  Commanding  Chief,  he  shall  suffer  death  for  it. 

Article  21.  "When  the  army,  or  any  part  thereof,  shall  come  to  engage 
the  Enemy  in  fight,  whoever  shall  run  from  his  Colours  (be  he  native  or 
stranger)  or  doth  not  defend  them  to  the  utmost  of  his  power,  so  long  as 
thev  are  in  anv  danger,  shall  suffer  death  for  it.  And  whatsoever  Souldiers 
shall  at  any  other  time  run  away  from  his  Colours,  shall  suffer  death,  or  such 
other  punishment  as  Our  General  Court-martial  shall  think  fit. 


ORDERS    AND    RULES   WHEN    AN    ENEMY    IS    SUBDUED,    ETC. 

Article  22.  If  any  Regiment  or  commanded  party,  shall  not  behave 
themselves  in  fight  against  an  Enemy  as  they  ought  to  do,  they  shall  answer 
for  it  before  Our  General  Court-martial;  and  the  Officer  or  Souldier,  who 
shall  be  found  faulty  therein,  shall  suffer  such  punishment  as  shall  be 
thought  fit  to  be  inflicted  on  them  by  Our  General  Court-martial. 

Article  23.  When  it  shall  please  God  that  Our  forces  shall  beat  the 
Enemy,  every  man  shall  follow  his  Officer  in  the  chase;  but  whoever  shall 
presume  to  pillage  or  plunder  till  the  Enemy  be  entirely  beaten,  and  if  mis- 
fortune happen,  he  shall  suffer  deatli,  or  such  other  punishment  as  shall  be 
pronounced  against  him  by  Our  General  Court-martial,  and  tlie  pillage  so 
gotten  shall  be  forfeited  to  the  use  of  the  sick  and  maimed  Souldiers. 

Article  24.  When  any  Town  or  place  shall  be  taken  fthough  by  assault) 
no  man  shall  ])resume  to  pillage  any  Church  or  Hospital  (without  leave  or 
necessary  reason)  much  less  to  set  fire  to  any  Church  Hospital,  School, 
or  Mill;  neither  shall  they  offer  violence  to  any  Churchmen,  aged  men  or 
•women,  maids  or  children,  unless  they  be  found  actually  in  arms  against 
them,  upon  pain  of  deatli,  or  other  punishment  at  the  discretion  of  Our 
General  Court-martial;  bat  whoever  shall  force  a  woman  to  abuse  her 
(whether  belonging  to  the  Enemy  or  not)  and  tlie  fact  be  sufficiently  proved 
against  him,  he  shall  certainly  suffer  death  for  it. 


572  APPENDIX  A. 

Article  25.  In  what  place  soever  it  shall  please  God  that  the  Enemy  shall 
be  subdued  and  overcome,  all  the  Ordnance,  Ammunition,  and  Victuals, 
that  shall  be  there  found,  sliall  be  secured  for  Our  use,  and  for  the  better 
relief  of  the  Army ;  and  one-tenth  part  of  all  the  spoil  shall  be  laid  apart 
towards  the  relief  of  the  sick  and  maimed  Souldiers. 

Article  26.  Whosoever  shall  take  any  General  Officers  as  prisoners,  shall 
present  them  to  Us,  or  Our  General,  who  will  reward  them.  And  they 
who  shall  take  other  prisoners,  may  keep  to  themselves  the  Officers  and 
Volnntiers,  giving  their  names  to  the  Martial  General;  but  shall  not  put 
them  to  ransome,  without  Our,  or  Our  General's  leave.  And  they  are 
immediately  to  send  all  private  Souldiers  so  taken  to  the  Martial  General, 
who  is  to  take  them  into  custody. 

DUTIES    IN    CAMP,    OR    IN    GARRISON. 

Article  27.  If  any  Souldiers  shall  be  drunk  in  the  Enemies  quarters, 
before  they  have  wholly  laid  down  their  arms  and  yielded  to  mercy,  and  any 
hurt  or  mischief  ensue  thereon,  such  drunken  Souldier  shall  suffer  death  for 
it,  or  such  other  punishment  as  Our  General  Court-martial  shall  think  fit; 
but  if  no  damage  ensue  thereby,  they  shall  be  laid  in  Irons,  and  live  on 
bread  and  water  for  the  space  of  three  days. 

Article  28.  All  Officers,  whose  charge  it  is,  shall  see  the  quarters  kept 
clean  and  neat,  upon  pain  of  severe  punishment. 

Article  29.  No  Officer  shall  lye  out  all  night  from  the  Camp  or  Garrison, 
without  his  superiour  Officer's  leave  obtained  for  the  same,  upon  pain  of 
being  punished  for  it  as  a  Court-martial  shall  think  fit.  Neither  shall  any 
Souldier  or  Officer  go  any  by-way  to  the  Camp,  other  than  the  common  way 
laid  out  for  all,  upon  pain  of  being  punished  as  aforesaid.  But  if  any  Officer 
shall  without  leave,  be  absent  from  his  quarters  a  week,  he  shall  lose  one 
month's  pay;  and  if  longer,  he  shall  be  discharged  of  his  Command,  or 
place,  as  a  man  unfit  to  bear  Office  in  the  Army. 

Article  30.  No  Souldier  shall  presume  to  make  any  alarm  in  the  quarter, 
by  shooting  off  his  musquet  in  the  night,  after  the  watch  is  set,  unless  it  be 
at  an  Enemy,  upon  pain  of  suffering  such  punishment  as  a  Court-martial 

shall  think  fit. 

Article  31.  No  Souldier  shall  in  anger  draw  his  sword  in  any  Camp, 
Post,  or  Garrison,  upon  pain  of  suffering  such  punishment  as  a  Court-mar- 
tial shall  think  fit  to  inflict  upon  him  for  the  same. 

Article  32.  When  warning  is  given  for  setting  the  watch,  by  beat  of 
drum,  or  the  sound  of  trumpet  or  fife,  if  any  Souldier  shall  absent  himself 
without  reasonable  cause,  he  shall  be  punished  by  riding  a  wooden  horse,  or 
otherwise,  at  the  discretion  of  the  Commander. 

And  whatever  Souldier  shall  fail  at  the  beating  of  a  drum,  or  the  sound 


THE  PRINCE  RUPERT  ARTICLES.  573 

of  a  trumpet  or  fife,  or  upon  an  alarm  given,  to  repair  to  his  Colours,  with 
his  arms  decently  kept  and  well  fix'd  (unless  there  be  an  evident  necessity 
to  hinder  him  from  the  same)  he  shall  either  be  clap'd  in  Irons  for  it,  or 
suffer  such  other  punishment  as  a  Court-martial  shall  think  lit. 

Article  33.  Whoever  makes  known  tlie  Watch-word  witiiout  order,  or 
gives  any  other  Word  but  what  is  given  by  the  Ofticer,  shall  sutler  death,  or 
such  other  punishment  as  Our  General  Court-martial  shall  think  fit. 

Article  34.  A  Centinel,  who  is  found  sleeping  in  aii}*  Post,  (rarrison. 
Trench,  or  the  like  (while  he  should  be  upon  his  duty)  .shall  suffer  death, 
or  such  other  punishment  as  Our  General  Court-martial  shall  by  their  sen- 
tence inflict  for  the  same. 

And  if  a  Centinel  or  Perdue  shall  forsake  his  place,  before  he  be  relieved 
or  drawn  off,  or  upon  discovery  of  an  Enemy  shall  not  give  warning  to  his 
quarters  according  to  direction,  he  shall  suffer  death,  or  such  other  punish- 
ment as  Our  General  Court-martial  shall  think  fit. 

As  likewise,  if  any  Souldier  imployed  as  a  Scout,  shall  not  go  upon  that 
service  so  far  as  he  is  commanded,  or  having  discovered  an  ambu.sh  or 
approach  of  the  Enemy,  shall  not  return  forthwitli  to  give  notice  or  waniing 
to  his  quarters,  or  if  he  enter  into  any  house,  and  there  or  elsewhere  be  found 
sleeping  or  drunk,  whilst  he  should  have  been  upon  the  service,  he  shall 
suffer  death,  or  such  other  punishment  as  shall  be  inflicted  upon  him  by  the 
sentence  of  Our  General  Court-martial. 

Article  35.  Whoever  shall  do  violence  to  any  who  shall  bring  victuals  to 
the  Camp  or  Garrison,  or  shall  take  his  horse  or  goods,  shall  suffer  death,  or 
such  other  punishment  as  he  shall  be  sentenced  to  by  Our  General  Court- 
martial. 

If  any  shall  presume  to  beat  or  abuse  his  host,  or  the  wife,  child,  or 
servant  of  his  host,  where  he  is  quartered  or  billetted,  he  shall  be  put  in 
Irons  for  it:  And  if  he  do  it  a  second  time,  he  shall  be  further  punished, 
and  the  party  wrong'd  shall  have  amends  made  him :  And  if  any  presume  to 
exact  free  quarter,  without  leave  of  the  chief  Oflficer  upon  the  place,  they 
shall  be  severely  punish 'd  at  the  discretion  of  a  Court-martial. 

Article  36.  Xo  Souldier  or  Officer  shall  use  any  reproachful  or  provok- 
ing speech  or  act  to  another,  upon  pain  of  Imprisonment,  and  such  further 
punishment  as  a  Court-martial  shall  think  fit. 

Neither  shall  any  Oflficer  or  Souldier  presume  to  send  a  challenge  to  any 
other  Otticer  or  Souldier,  to  fight  a  duel: 

Neither  shall  any  Souldier  or  Officer  presume  to  upbraid  another  for 
refusing  a  challenge:  for,  whoever  shall  offend  in  either  of  these  cases,  if  he 
be  an  Officer,  he  shall  lose  his  place  and  command,  whatever  it  be;  and  if 
a  private  Souldier,  he  shall  ride  the  wooden  horse,  and  be  further  punished 
as  a  Court-martial  shall  tliink  fit. 

And  if  any  Corporal,  or  other  Officer,  commanding  a  guard,  shall  will- 


574  APPENDIX  A. 

ino-lv  or  knowingly,  suffer  either  Souldiers  or  Officers,  to  go  forth  to  a  duel, 
or  private  fight,  he  shall  be  punished  for  it  by  the  sentence  of  a  Court- 
martial. 

Forasmuch  as  all  Officers,  of  what  condition  soever,  shall  have  power  to 
part  an(;l  quell  all  quarrels,  frays,  or  sudden  disorders  between  Souldiers  and 
Officers,  though  of  another  Company,  Troop,  or  llegiment,  and  to  commit 
the  disordered  persons  to  prison,  until  their  proper  Officers  be  acquainted 
therewith :  And.  whoever  shall  resist  such  an  Officer  (though  of  another 
Company,  Troop,  or  Regiment)  or  draw  his  sword  upon  him,  shall  be 
severely  punish'd  as  Our  General  Court-martial  shall  appoint. 

But  if  two  or  more  going  into  the  field  to  fight  a  duel,  shall  draw  their 
swords,  or  other  weapons,  and  fight,  though  neither  of  them  fall  upon  the 
spot,  nor  dye  afterwards  of  any  wound  there  received,  yet  if  they  be 
Officers,  they  shall  lose  their  places ;  and  if  common  Souldiers,  they  shall  be 
punish'd  with  riding  the  wooden  horse,  or  otherwise  as  a  Court-martial  shall 

direct. 

And  lastly,  in  all  cases  of  duels,  the  seconds  shall  be  taken  as  principals 
and  punish'd  accordingly. 

ORDERS    AND    RULES    FOR   THE    REGULATION    OF    MUSTERS. 

Article  37.  None  shall  be  mustered,  but  such  as  are  completely  armed, 
viz.,  each  horseman  to  have  for  his  defensive  arms,  back,  breast,  and  pott, 
and  for  his  offensive  arms,  a  sword,  not  under  three  foot  long  in  the  blade, 
and  a  case  of  pistols,  the  barrels  whereof  not  to  be  under  fourteen  inches  in 
length,  and  each  trooper  of  Our  Guards  to  have  a  carbine,  besides  the  afore- 
said arms;  and  the  foot  to  have  each  souldier  a  sword,  or  dagger  for  their 
musquets,  and  each  pikeman  a  pike  of  sixteen  foot  long  and  not  under;  and 
each  musquettier  a  musquet  (with  a  collar  of  bandaliers)  the  barrel  of  which 
musquet  to  be  about  four  foot  long,  and  to  contain  a  bullet,  fourteen  of 
which  shall  make  a  pound,  running  into  the  barrel. 

If  any  borrow  arms  of  another  to  pass  the  muster  withall,  the  lender,  if 
he  be  a  souldier,  shall  forfeit  the  value  of  the  arms  so  lent,  to  be  taken  out 
of  his  pay,  and  the  borrower  shall  be  severely  punish'd. 

Article  38.  None  shall  be  allowed  upon  any  muster,  who,  by  loss  of 
limbs,  or  otherwise,  is  unable  for  Our  service,  but  by  order  from  Us,  or  Our 

General. 

Article  39.  No  house-keeper  or  inhabitant  in  the  usual  quarters  of  Our 
guards  of  horse  or  foot,  or  in  the  usual  quarters  of  any  other  regiment  or 
garrison,  shall  be  received  or  entertained  with  Our  service  and  pay,  and 
mustered  as  a  private  souldier,  without  order  from  Us,  or  Our  General;  nor 
shall  any  Officer  demand  or  receive  directly  or  indirectly  any  sum  of  money 
whatever,  from  any  under  his  command,  for  admitting  and  entertaining  him 


THE  PRINCE  JtiTEIU   AliTICLES.  575 

into  his  troop,  company,  or  garrison,  upon  pain  of  being  cashier'd,  and 
rendered  uncapable  of  ever  being  imployed  again  in  the  Army. 

Article  40.  No  Captain  of  a  troop  or  company  sliall,  u])on  pain  of  being 
rendered  uncapable  of  ever  serving  in  Our  Army  any  more,  be  allowed  to 
muster  any  servant  in  his  troop  or  company,  but  those  who  are  not  only  fit 
and  able  for  Our  service,  but  also  are  bound  by  oath  and  pay  to  follow  the 
troo])  or  company,  and  who  duly  and  constantly  appear  at  every  muster  in 
proper  arms,  unless  they  have  leave  to  be  absent,  which  is  not  to  be  granted, 
but  upon  a  real  and  good  occasion. 

And  whatever  other  person  shall  present  liimself  or  his  horse  in  the 
muster  to  mislead  the  Muster-master,  or  defraud  Us,  shall  suffer  such 
punishment  as  Our  (Jeneral  Court-martial  shall  think  fit. 

Article  41.  .No  man  shall  presume  to  present  liimself  to  the  muster,  to 
be  inrolled  in  the  muster-rolls,  by  a  counterfeit  or  wrong  name,  or  sirname, 
or  place  of  birth  or  habitation,  upon  pain  of  such  punishment  as  Our 
Cieneral  Court-martial  shall  think  fit. 

Article  42.  No  Officer  or  Souldier  shall  be  allowed  or  passed  the  muster, 
who  does  not  diligently  attend  his  duty,  and  appear  at  the  muster,  unless 
he  be  absent  by  Our  permission,  or  leave  from  Our  General,  or  tlie  chief 
Officer  commanding  the  regiment,  troop,  or  company,  to  which  he  belongs. 

And  no  Officer  or  Souldier  is  to  be  absent  as  aforesaid  (without  leave 
from  Us  or  Our  General)  for  above  two  months  in  a  year. 

And  there  are  to  be  always  two  Commission  Officers  at  least  with  every 
troop  or  company,  save  only  in  the  troops  of  horse  and  companies  of  foot 
which  are  in  garrison,  of  which  field- Officers  or  Captains,  in  which  troops 
and  companies  respectively  one  Commission-Officer  (at  least)  is  to  be  present 
with  them. 

Article  43.  All  passes  and  licenses  for  being  absent  shall  be  brouglit  to 
the  Muster-master,  who  is  required  to  enter  the  same  in  a  book  fairly  written, 
to  prevent  collusion;  and  whoever  is  absent  longer  than  the  time  limited  in 
his  pass  for  his  absence,  shall  be  respited  and  not  allowed  the  muster,  with- 
out order  from  Us  or  Our  General. 

But  if  the  Commissaries-General,  shall  upon  the  muster  fiiul  too  many 
absent  from  any  troop  or  company  at  a  time,  they  are  to  complain  to  Us,  or 
Our  (Teneral. 

Article  44.  Xo  muster-master  shall  knowingly  let  any  pass  the  musters, 
but  such  as  are  (pialified  according  to  the  precedent  articles,  upon  the 
penalty  of  losing  his  place. 

Article  45.  Whatever  Lieutenant,  Cornet,  or  Ensign,  shall  discover  and 
make  ])roof,  to  the  (Jeneral  Officer  or  Colonel,  that  his  Captain  hath  made 
false  musters,  the  said  Captain  shall  be  cashier'd,  and  the  Lieutenant,  or 
Ensign  discovering  as  aforesaid,  shall  have  the  ])lace  of  his  Captain. 

And  whatever  Serjeant  or  Corporal  shall  discover  and  make  proof  of  false 


576  APPENDIX  A. 

masters  as  aforesaid,  the  said  Serjeant  or  Corporal  shall  have  for  each  time 
the  sum  of  fifty  pounds,  payable  by  the  Pay-master  at  the  first  muster 
immediately  following  the  discovery  so  made. 

Bat  if  the  accusation  shall  upon  examination  be  found  false  or  malicious, 
in  that  case,  he  shall  be  immediately  cashier'd,  and  suffer  such  further 
punisliment  as  shall  be  judged  fit  by  Our  General  Court-martial. 

Article  46.  If  any  Souldier  shall  be  sick,  wounded,  or  maimed  in  Our 
service,  he  shall  be  sent  out  of  the  camp  to  some  fit  place  for  his  recovery, 
where  he  shall  be  provided  for  by  the  Officer  appointed  to  take  care  of  sick 
and  wounded  Souldiers,  and  his  wages  or  pay  shall  go  on,  and  be  duly  paid, 
till  it  does  appear  that  he  can  be  no  longer  serviceable  in  Our  Army,  and 
then  he  shall  be  sent  by  pass  to  the  countrey,  and  the  money  to  bear  his 
charges  in  his  travel. 

Article  47.  All  Captains  shall  use  their  utmost  endeavours  to  have  their 
troops  and  companies  compleat  and  full,  and  within  two  days  after  each 
general  muster,  both  the  Captain  and  Our  Muster-master  shall  send  to  the 
General  (if  he  require  it)  and  to  the  Treasurer  or  Pay-master  of  the  Army, 
a  perfect  list  or  roll  of  all  the  Officers,  Troopers,  and  Souldiers,  or  their 
troops  and  companies,  that  are  in  actual  service,  punctually  expressing  at 
the  foot  of  the  rolls,  what  new  Officers,  Troopers,  and  Souldiers  have  been 
entertained  since  the  preceding  muster,  in  lieu  of  such  as  have  been  cashier'd 
or  are  deceased,  with  the  day  when  the  one  dyed  or  went  off,  and  the  other 
was  entertained  in  his  place. 

Article  48.  All  commissions  granted  by  Us,  or  Our  General,  to  any 
Officer  in  pay,  shall  be  brought  to  the  Muster-master,  who  is  to  record  and 
enter  the  same  in  a  book  fairly  written. 

And  no  Commissioned-Officer  shall  be  allowed  in  musters,  without  a 
commission  from  Us  or  Our  General,  and  the  same  entered  with  the  Com- 
missaries General  of  the  musters,  or  their  Deputies,  who  are  hereby  required 
forthwith,  and  from  time  to  time,  to  send  the  Officers  names  to  the  Secre- 
tary and  Judge  Advocate  of  Our  Forces. 

Article  49.  No  Commission  Officer  after  inrollment  and  being  mustered, 
shall  be  dismiss'd  or  cashier'd,  without  order  from  Us,  or  Our  General,  or 
Our  General  Court-martial. 

But  for  Non-commission-Officers,  or  private  Souldiers,  their  captains, 
with  the  approbation  of  their  Colonels,  or  of  the  Governour  of  the  Garrison 
where  they  are,  may  discharge  them  when  they  find  cause,  taking  other 
Non-commission-Officer  or  Souldier  in  their  places.  Provided  that  such 
Colonel  or  Governour  shall  forthwith  certifie  the  Commissaries  General  of 
the  Musters,  that  (by  their  approbation)  such  Non-commission-Officers  or 
Souldiers  were  discharged,  and  others  taken  in  their  places  respectively. 

And  in  quarters  and  garrisons,  where  there  are  only  single  troops  or 
companies,  the  captains  certificates  are  forthwith  to  be  sent  and  accepted  by 


THE  PRINCE  liUl'ERT  ARTICLES.  677 

the  Commissaries  General,  expressing  the  day  of  each  Xon-commiseion- 
Officer  or  Souldiers  discharge,  or  death,  and  who  was  entertained  in  his 
place. 

Article  50.  We  do  not  expressly  forbid  any  Sonldier's  dnty,  either  of 
horse  or  loot,  to  be  done  by  any  other  than  the  Sonldier  hini.seif ;  but  in  case 
of  sickness  and  disability,  or  other  necessary  cause,  his  Captain  may  dispence 
with  his  absence  without  causing  him  to  find  another  to  serve  in  his  stead. 

Article  51.  The  Muster-master  shall  always  (the  night  before)  give 
notice  to  the  Officer  in  chief  commanding  any  regiment,  troop,  company, 
or  garrison,  of  the  time  and  place  for  their  muster,  that  so  the  Officers  and 
Souldiers  may  have  time  to  make  ready  for  the  muster. 

Upon  every  muster,  three  muster-rolls  are  to  be  pepared  of  the  respective 
troops  and  companies,  in  which  rolls,  the  names  of  all  private  Souldiers  are 
to  be  written  alphabetically;  one  of  which  rolls  is  to  be  in  parchment  for  the 
J^iv-master,  and  to  be  subscribed  (together  with  another  roll  which  the 
Muster-master  is  to  keep)  by  two  Commission-Officers  (at  the  lejust)  of  the 
respective  troops  and  companies,  and  the  Muster-master;  the  third  muster- 
roll  is  to  be  subscribed  only  by  the  muster-master,  which  the  Officer  is  to 
keep. 

And  no  rolls  are  to  be  allowed  by  the  Muster-master  and  Pay-master, 
otherwise  than  as  AVe  have  herein  directed: 

And  the  said  muster-rolls  are  to  be  perfected  forthwith  upon  every 
muster. 

Article  52.  If  a  trooper  or  dragoner  shall  lose  or  spoil  liis  horse,  or  any 
foot-souldier  his  arms,  or  any  part  thereof,  by  negligence  or  gaming,  he  shall 
remain  in  the  quality  of  a  pioneer  or  scavenger,  till  lie  be  furnished  with  as 
good  as  were  lost  at  his  own  charge;  and  if  he  be  not  otherwise  able,  the  one 
half  of  his  pay  shall  be  deducted  and  set  apart  for  the  providing  of  it,  till  he 
be  refurnished. 

Neither  shall  any  souldier  pawn  or  sell,  or  negligently  or  wilfully  break 
his  arms,  or  any  part  thereof,  or  any  hatchets,  spades,  shovels,  pickaxes,  or 
other  necessaries  of  war.  upon  pain  of  severe  punishment  at  the  discretion  of 
Our  General  Court-martial. 

And  where  arms  or  other  necessaries  aforesaid  shall  be  pawn'd,  they  are 
to  be  forfeited  and  seized  on  for  Our  use. 

Article  53.  All  OfBcers  and  Souldiers,  and  also  the  Muster-masters,  not 
duly  observing  these  Orders  and  Instructions,  and  every  of  them  respec- 
tively, shall  be  cashier'd  or  lyable  to  such  other  punishment  as  Our  Self, 
Our  General,  or  a  Court-martial  shall  appoint. 


5TS  APPENDIX  A. 

ORDERS    CONCERNING    VICTUALS    AND    AMMUNITION. 

Article  54.  None  shall  presume  to  spoil,  sell,  or  convey  awuy  any  ammu- 
nition tlelivered  unto  him,  upon  pain  of  suifering  death,  or  such  other 
punishment  as  Our  General  Court-martial  shall  think  lit. 

Article  55.  No  officer,  provider,  or  keeper  of  Our  Victuals  or  Ammuni- 
tion for  Our  forces,  shall  imhezzle,  or  willingly  spoil,  or  give  a  false  accompt 
upon  pain  of  suffering  such  punishment  as  Our  General  Court-martial  shall 

think  tit. 

Article  56.  No  Commissary  or  Victualler  shall  bring  or  furnish  unto  the 
Camp  any  unsound  or  unsavoury  Victuals,  of  what  kind  soever,  whereby 
sickness  may  grow  in  the  Army,  or  the  service  be  liindered;  and  if  upon 
examination  before  Our  General  Court-martial  he  shall  be  found  guilty,  he 
shall  suffer  such  punishment  as  they  shall  think  fit. 

Article  57.  Xo  Officer  or  Souldier  shall  be  a  Victualler  in  the  Army, 
without  consent  and  allowance  of  Our  General,  or  of  the  Officer  in  chief  of 
the  regiment,  upon  pain  of  being  punish'd  at  discretion. 

Article  58.  Xo  Victualler  or  Seller  of  beer,  ale,  or  wine,  belonging  to 
the  Armv,  shall  entertain  any  Souldier  in  his  house,  booth,  tent,  or  hut, 
after  the  "warning  peece,  tattoe,  or  beat  of  the  drum  at  night,  or  before  the 
beating  of  the  revalles  in  the  morning;  nor  shall  any  Souldier  (within  that 
time)  be  anywhere,  but  upon  his  duty,  or  in  his  quarters:  upon  pain  of 
punishment  both  to  the  Souldier,  and  entertainer,  at  the  discretion  of  a 
Court-martial. 

ORDERS    AND    RULES    FOR    THE  ADMINISTRATION    OF    .JUSTICE. 

Article  59.  The  Commission-Officers  of  every  regiment  may  hold  a 
Court-martial  for  the  regiment,  upon  all  necessary  occasions. 

There  shall  also  be  a  Provost-martial  of  every  regiment,  who  shall  have 
the  same  privilege  in  his  own  regiment  as  the  Provost-martial  General  hath 
in  the  Army  or  Camp,  and  such  fees  also  as  the  Court-martial  shall  allow. 

Article  60.  Those  wlio  are  Judges  in  Our  General  Court-martial,  or  in 
regimental  Court-martials,  shall  hold  the  same  rank  in  those  Courts  as  they 
do°in  the  Army  for  orders  sake;  and  they  shall  take  oath  for  tlie  due  admin- 
istration of  Justice  according  to  these  Articles,  or  (where  these  Articles  assign 
no  absolute  punishment)  according  to  their  consciences,  the  best  of  their 
X'nderstanding,  and  the  custome  of  war  in  the  like  cases:  and  shall  demean 
themselves  orderly  in  the  hearing  of  causes  (as  becomes  the  gravity  of  such 
a  Court);  and  before  giving  of  sentence,  every  Judge  shall  deliver  his  vote  or 
opinion  distinctly;  and  the  sentence  is  to  be  according  to  the  plurality  of 
votes;  and  if  there  happen  to  be  an  equality  of  votes,  the  President  he  is  to 

have  a  casting  voice. 

And  when  sentence  is  to  be  given,  the  President  shall  pronounce  it;  and 
after  that  the  sentence  is  pronounced,  the  Provost-martial  shall  have  warrant 
to  cause  execution  to  be  done  according  to  the  sentence. 


THE  PRINCE  RUPERT  ARTICLES.  579 

Article  61.  At  Our  General  Conrt-niartiuls,  there  shall  be  a  Clerk,  wIk; 
is  to  be  sworn  to  make  true  and  faithful  records  of  all  the  proceedings  of  the 
Court;  and  there  shall  be  also  such  other  Officers  appointed,  both  for  that, 
and  also  for  the  regimental  Court-martials,  as  shall  be  necessary;  and  Our 
General  Conrt-martiul  may  appoint  and  limit  the  fees  of  Our  Provost-martiul 
General,  as  they  shall  think  tit. 

Article  62.  All  controversies,  either  between  Souldiers  and  their  Captains 
or  other  Utlicers,  or  between  Souldiers  and  Souldiers,  relating  to  their  mili- 
tary capacities,  shall  be  summarily  heard  and  determined  at  the  next  Court- 
martial  of  the  regiment. 

Article  63.  In  any  matter  which  shall  be  adjudged  in  any  of  the  afore- 
said regimental  Court-nuirtials,  either  of  the  parties  that  finds  himself 
agrieved  may  appeal  to  Our  General  Court-martial;  who  are  to  take  care, 
that  if  the  party  appealing  make  not  good  his  suggestion,  recompence  be 
made  to  the  other  for  the  trouble  and  charge  of  such  an  appeal. 

Article  64.  In  all  criminal  causes  which  concern  Our  Crown,  Our 
Advocate  General,  or  Judge  Advocate  of  Our  Army,  shall  inform  the  Court 
and  prosecute  on  Our  behalf. 

Article  65.  No  Officers  or  Souldiers  shall  presume  to  hinder  the  Provost- 
martial,  his  Lieutenant,  or  servants,  in  the  execution  of  his  Office,  upon 
pain  of  death,  or  such  other  punishment  as  a  Court-martial  shall  think  fit. 
But  on  the  contrary,  all  Captains,  Officers  and  Souldiers,  shall  do  their 
utmost  to  apprehend  and  bringing  to  punishment  all  Otfenders,  and  shall 
assist  the  Officers  of  Our  Army  for  the  purpose,  especially  the  said  Provost- 
martial,  his  Lieutenant,  and  servants. 

And  if  the  Provost-martiaU  or  his  Officers,  require  the  assistance  of  any 
Officer  or  Souldier,  in  apprehending  any  person,  declaring  to  them  that  it  is 
for  a  capital  crime,  and  the  party  escape  for  want  of  aid  and  assistance,  the 
party  or  parties  refusing  to  aid  or  assist,  shall  suffer  such  punishment  as  a 
Court-martial  shall  inflict. 

Article  66.  The  Officer  or  Souldier,  who  shall  presume  to  draw  his 
sword  in  any  place  of  Judicature,  while  the  Court  is  sitting,  shall  suffer  such 
punishment  as  shall  be  inflicted  on  him  by  a  Court-martial. 

And  We  do  hereby  authorize  Our  Provost-martial  General  of  Our  Army, 
by  his  own  authority,  to  apprehend  such  offenders. 

And  if  any  Souldier  being  committed  for  any  offence  shall  break  prison, 
the  said  Provost-martial  General  shall  by  his  own  authority  apprehend  him; 
and  the  offender  shall  suffer  death,  or  such  other  punishment  as  Our 
General  Court-martial  shall  tliink  fit. 

Article  67.  If  any  fray  shall  iuippen  within  the  camp,  or  place  of  garri- 
son, in  any  of  the  Souldiers  lodgings,  or  where  they  meet,  it  shall  be  inquired 
into  bv  the  Officers  of  the  regiment,  and  the  beginners  and  pursuers  tliereof 
pnnishM  according  to  tlie  quality  of  the  offence. 


580  APPENDIX  A. 

Article  68.  If  any  inferionr  Officer,  either  of  horse  or  foot,  be  wrong'd 
by  his  Officer,  he  may  complain  to  his  Colonel,  or  other  superiour  Officer  of 
the  regiment,  who  is  to  redress  the  same,  upon  due  proof  made  of  the  wrong 
done  him;  but  if  he  fail  therein,  the  party  grieved  is  to  apply  to  the  General 
officer  for  redress:  And  if  the  accusation  be  false,  the  complainant  is  to  be 
punisird  at  the  discretion  of  a  Court-martial. 

Article  69.  If  any  Colonel,  or  Captain,  shall  force  or  take  anything  away 
from  any  private  Souldier,  that  Colonel  or  Captain  shall  be  punish'd  accord- 
ing to  the  quality  of  the  offence,  by  the  judgment  of  Our  General  Court- 
martial. 

But  if  a  Souldier  shall  be  wrong'd,  and  shall  not  appeal  to  the  Court,  or 
liis  superiour  Commanders,  but  take  his  own  satisfaction  for  it,  he  shall  be 
punish'd  by  the  Judgment  of  a  Court-martial. 

Article  70.  If  any  Souldier  dye,  no  other  shall  take  or  spoil  his  goods, 
upon  pain  of  restoring  double  the  value  to  him  to  wliom  they  belonged,  and 
of  such  further  punishments  as  a  Court-martial  shall  think  fit. 

But  the  Captain  of  the  Company  of  which  such  a  Souldier  was  in  shall 
take  the  said  goods  into  his  custody,  and  dispose  of  them  for  paying  his 
quarters,  and  to  keep  the  overplus  (if  any  be)  for  the  use  of  those  to  whom 
they  belong,  and  who  shall  claim  the  same  within  three  months  after  his 
death. 

And  if  any  Captain  or  Officer  dye,  the  Chief  Commander  shall  take  care 
of  preserving  his  Estate  in  like  manner. 

Article  71.  No  Provost-martial  shall  refuse  to  receive  or  keep  a  prisoner 
sent  to  his  charge  by  authority,  or  shall  dismiss  him  without  order,  upon 
pain  of  such  punishment  as  a  Court-martial  shall  think  fit. 

And  if  the  offense  for  which  the  prisoner  was  apprehended  deserv'd 
death,  the  Provost-martial  failing  to  receive  and  keep  him  as  aforesaid  shall 
be  lyable  to  the  same  punishment. 

Article  72.  If  any  person  be  committed  by  the  Provost-martial's  own 
authority,  without  other  command,  he  shall  acquaint  the  General,  or  other 
chief  Commander  with  the  cause  thereof,  within  twenty-four  hours,  and 
the  Provost-martial  shall  thereupon  dismiss  him,  unless  he  have  order  to  the 
contrary. 

Article  73.  No  man  shall  presume  to  use  any  braving  or  menacing  words, 
signs,  or  gestures,  where  any  of  the  aforesaid  Courts  of  Justice  are  sitting, 
upon  pain  of  suffering  such  punishment  as  the  Court-martial  shall  think  fit. 

Article  74.  Whatever  is  to  be  published,  or  generally  made  known,  shall 
be  done  by  beat  of  drum  or  the  sound  of  trumpet,  that  so  no  man  may  pre- 
tend ignorance  thereof. 

And  after  that,  whoever  shall  be  found  disobedient,  or  faulty,  against 
what  is  thus  published  shall  be  punish'd  according  to  these  Articles,  or  the 
quality  of  the  fact. 


APPENDIX  B. 

THE  BRITISH  ARTICLES   OF  1771p. 

RULES  AND  ARTICLES  FOR  THE  BETTER  GOVERNMENT  OF 
HIS  MAJESTY'S  HORSE  AND  FOOT  GUARDS,  AND  ALL 
OTHER  HIS  MAJESTY'S  FORCES  IN  GREAT  BRITAIN 
AND  IRELAND.  DOMINIONS  BEYOND  THE  SEAS  AND 
FOREIGN  PARTS,  FROM  THE  34TH  DAY  OF  MARCH, 
1774. 

Section  1. 
divine  worship. 

Article  L  All  Officers  and  Soldiers  not  having  Jnst  Impediment  shall 
diligently  frequent  Divine  Service  and  Sermon  in  the  Places  appointed  for 
the  assembling  of  the  Regiment,  Troop  or  Company  to  which  they  belong ; 
such  as  willfully  absent  themselves,  or,  being  present,  behave  indecently  or 
irreverently,  shall,  if  Commissioned  Officers,  be  brought  before  a  Court 
Martial,  there  to  be  publickly,  and  severely  reprimanded  by  the  President; 
if  Non  Commissioned  Officers  or  Soldiers  every  Person  so  offending  shall,  for 
his  first  offence,  forfeit  twelve  pence  to  be  deducted  out  of  his  next  Pay; 
for  the  second  Offence  he  shall  not  only  forfeit  Twelve  pence,  but  be  laid  in 
Irons  for  Twelve  Hours,  and  for  every  like  Offence  shall  suffer  and  pay  in 
like  manner,  which  money  so  forfeited,  shall  be  applied  to  the  Use  of  the 
Sick  Soldiers  of  the  Troop,  or  Company,  to  which  the  Offender  belongs. 

Article  2.  Whatsoever  Officer  or  Soldier  shall  use  any  unlawful  Oath  or 
Execration,  shall  incur  the  Penalties  expressed  in  the  first  Article. 

Article  3.  Whatsoever  Officer  or  Soldier  shall  presume  to  speak  against 
any  known  Article  of  the  Christian  Faith  shall  be  delivered  over  to  the  Civil 
Magi^^trate  to  be  proceeded  against  according  to  Law. 

Article  4.  Whatsoever  Officer  or  Soldier  shall  profane  any  Place  dedi- 
cated to  Divine  Worship,  or  shall  offer  Violence  to  a  Chaplain  of  the  Army, 
or  to  any  Minister  of  God's  Word,  he  shall  be  liable  to  such  Penalty,  or 
Corporal  Punishment  as  shall  be  inflicted  on  him  by  a  Court  Martial. 

581 


582  APPENDIX  B. 

Article  5.  No  Chaplain  who  is  commissioned  to  a  Regiment,  Company, 
Troop,  or  Garrison,  shall  absent  himself  from  tlie  said  Eegiment,  Company, 
Troop,  or  Garrison  (excepting  in  the  case  of  Sickness  or  Leave  of  Absence) 
upon  pain  of  being  brought  to  a  Court  Martial  and  punished  as  their  Judg- 
ment and  the  Circumstances  of  his  Offence  may  require. 

Article  6.  Whatsoever  Chai)lain  to  a  Regiment,  Troop,  or  Garrison  shall 
be  guilty  of  Drunkenness,  or  of  other  scandalous  or  vicious  Behaviour 
derogating  from  the  sacred  Character  with  which  he  is  invested,  shall,  upon 
due  Proofs  before  a  Court  Martial,  be  discharged  from  his  said  Office. 


Section  2. 

MUTINY. 

Article  1.  Whatsoever  Officer  or  Soldier  shall  presume  to  use  traiterous 
or  disrespectful  Words  against  Our  Royal  Person,  or  any  of  Our  Royal 
Family,  if  a  Commissioned  Officer,  he  shall  be  cashiered ;  if  a  Non  Commis- 
sioned Officer  or  Soldier,  he  shall  suffer  such  punishment  as  shall  be  inflicted 
upon  him  by  the  sentence  of  a  Court  Martial. 

Article  2.  Any  Officer  or  Soldier  who  shall  behave  himself  with  Con- 
tempt or  Disrespect  towards  the  General  or  other  Commander  in  Chief  of 
Our  Forces,  or  shall  speak  Words  tending  to  his  Hurt  or  Dishonour,  shall 
be  j^unished  according  to.  the  Nature  of  his  Offence  by  the  Judgment  of  a 
Court  Martial. 

Article  3.  Any  Officer  or  Soldier  who  shall  begin,  excite,  cause,  or  join 
in  any  Mutiny,  or  Sedition  in  the  Regiment,  Troop,  or  Company,  to  which 
he  belongs,  or  in  any  other  Regiment,  Troop,  or  Company,  either  of  Oar 
Land  or  Marine  Forces,  or  in  any  other  Party,  Post,  Detachment,  or  Guard, 
on  any  pretence  whatsoever,  shall  suffer  death,  or,  such  other  punishment, 
as,  by  a  Court  Martial,  shall  be  inflicted. 

Article  4.  Any  Officer,  Non  Commissioned  Officer,  or  Soldier,  who, 
being  present  at  any  Mutiny  or  Sedition,  does  not  use  his  utmost  Endeavours 
to  surpress  the  same,  or  coming  to  the  knowledge  of  any  Mutiny,  or  intended 
Mutiny,  does  not,  Avithout  Delay,  give  Information  thereof  to  his  Command- 
ing Officer,  shall  be  punished  by  a  Court  Martial  with  Death,  or  otherwise, 
according  to  the  Nature  of  his  Offence. 

Article  5.  Any  Officer  or  Soldier  who  shall  strike  his  superior  Officer,  or 
draw,  or  offer  to  draw,  or  shall  lift  up  any  Weapon,  or  offer  any  Violence 
against  him,  being  in  the  Execution  of  his  Office,  on  any  pretence  whatso- 
ever, or  shall  disobey  any  lawful  Command  of  his  superior  Officer,  shall  suffer 
Death,  or  such  other  punishment  as  shall,  according  to  the  Nature  of  his 
Offence,  be  inflicted  upon  him  by  the  Sentence  of  a  Court  Martial. 


THK  BlUTISH  AliTICLES  OF  1774.  583 

Section  ;3. 
of  1nlistin(;  soldiers. 

Article  1.  Every  Noii  (Joinniissioned  Officer  aud  Soldier  who  shall  inlist 
liiniself  in  Our  Service,  sluill,  at  the  Time  of  his  so  inlistin<,^  or  within  four 
Days  afterwards,  have  the  Articles  against  Mutiny  and  Desertion  read  to 
him,  and  shall,  by  the  Officer  who  inlisted  him,  or  by  the  Commanding 
Otiicer  of  the  Troop  or  Company,  into  which  he  was  inlisted,  be  taken  before 
the  next  Justice  of  the  I'e  ice,  or  Chief  Magistrate  of  any  City  or  Town  Cor- 
jjorate  (not  being  an  Otiicer  of  the  Army)  or  in  foreign  Parts,  where 
liecourse  cannot  be  had  to  the  Civil  Magistrate,  before  tiie  Judge  Advocate, 
and  in  liis  presence  take  the  following  Oath  "  I  swear  to  be  true  to  Our 
Sovereign  Lord  King  George,  and  to  serve  him  honestly  and  faithfully 
in  Defence  of  his  Person,  Crown  and  Dignity  against  all  his  Enemies,  or 
Opposers  whatsoever,  and  to  observe  and  obey  His  Majesty's  Orders,  and  the 
Orders  of  the  General  and  Officers  set  over  me  by  His  Majesty", — which 
Justice  or  ^Magistrate  is  to  give  the  Officer  a  Certificate,  signifying  that  the 
!Man  inlisted  did  take  the  said  Oath,  and  that  the  Articles  of  War  were  read 
to  liim  according  to  the  Act  of  Parliament. 

Article  2.  After  a  Non  Commissioned  Officer  or  Soldier  shall  liave  been 
duly  inlisted  and  sworn,  he  shall  not  be  dismissed  Our  Service  without  a 
Discharge  in  Writing,  and  no  Discharge  granted  to  liim  shall  be  allowed  of 
as  sufficient  which  is  not  signed  by  a  Field  Officer  of  the  Regiment  into 
which  he  was  enlisted,  or  Commanding  Officer,  where  no  Field  Officer  of 
the  Regiment  is  in  Great  Britain. 

Section  4. 

MUSTERS. 

Article  1.  Every  Officer  commanding  a  Regiment,  Troop,  or  Company 
shall,  upon  the  Notice  given  to  him  by  the  Commissary  of  the  Musters,  or 
from  one  of  the  Deputies,  assemble  the  Regiment,  Troop,  or  Company, 
under  his  Command,  in  the  next  convenient  Place  for  their  being  mustered. 

Article  2.  Kvery  Colonel  or  other  Field  Officer  commanding  the  Regi- 
ment, Troop,  or  Company,  and  actually  residing  with  it,  may  give  Furloughs 
to  Xon  Commissioned  Officers  and  Soldiers  in  such  Numbers,  and  for  so  long 
a  Time  as  he  shall  judge  to  be  most  consistent  with  the  good  of  Our  Service; 
but  no  Xon  Commissioned  Otiicer  or  Soldier  shall,  by  leave  of  his  Captain,  or 
inferior  Officer  commanding  the  Troop  or  Company  (his  Field  Officer  not 
being  present)  be  absent  above  Twenty  Days  in  six  Months;  nor  shall  more 
than  two  Private  Men  be  absent  at  the  same  time  from  their  Troop  or  Com- 
pany,  excepting  some  extraordinary   Occasion   shall   require  it;  of  which 


58-1:  APPENDIX  B. 

Occasion  the  Field  Officer  present  with,  and  commanding  the  Regiment,  is 
to  be  the  Judge, 

Article  3.  At  every  Muster  the  Commanding  Officer  of  each  Regiment, 
Troop,  or  Company  there  present,  shall  give  to  the  Commissary  Certificates 
signed  by  himself  signifying  how  long  such  Officers  who  shall  not  appear  at 
the  said  Muster,  have  been  absent,  and  the  reason  of  their  absence.  In  like 
manner  the  Commanding  Officer  of  every  Troop  or  Company  shall  give  Cer- 
tificates, signifying  the  Reasons  of  the  Absence  of  the  Xon  Commissioned 
(.>fficers  and  Private  Soldiers,  which  Reasons  and  Time  of  Absence  shall  be 
inserted  in  the  Muster  Rolls  opposite  to  the  Names  of  the  respective  absent 
Officers  and  Soldiers:  The  said  Certificates  shall,  together  with  the  Muster 
Rolls,  be  remitted  to  Our  Commissary's  Office,  within  Twenty  Days  after 
such  Muster  being  taken:  On  the  failure  thereof,  the  Commissary  so  offend- 
ing shall  be  discharged  from  Our  Service. 

Article  4.  Every  Officer  who  shall  be  convicted  before  a  General  Court 
Martial  of  having  signed  a  false  Certificate  relating  to  the  Absence  of  either 
Officer  or  Private  Soldier  shall  be  cashiered. 

Article  5.  Every  Officer  who  shall  knowingly,  make  a  false  Muster  of 
Man  or  Horse,  and  every  Officer  and  Commissary,  who  shall  Avillingly  sign, 
direct,  or  allow  the  signing  of  the  Muster  Rolls,  wherein  such  false  Muster 
is  contained,  shall,  upon  Proof  made  thereof  by  two  Witnesses  before  a 
General  Court  Martial,  be  cashiered,  and  suffer  such  other  Penalty  as  by  the 
Act  of  Parliament  is  for  that  purpose  inflicted. 

Article  6.  Any  Commissary  who  shall  be  convicted  of  having  taken 
Money  by  way  of  Gratification,  on  the  mustering  any  Regiment,  Troop,  or 
Company,  or  on  the  signing  of  the  Muster  Rolls,  shall  be  displaced  from  his 
Office,  and  suffer  such  other  Penalty  as  by  the  Act  of  Parliament  is  inflicted. 

Article  7.  Any  Officer  who  shall  presume  to  muster  any  person  as 
a  Soldier  who  is  at  other  Times  accustomed  to  wear  a  Livery,  or  who  does 
not  actually  do  his  Duty  as  a  Soldier,  shall  be  deemed  guilty  of  having  made 
a  false  Muster,  and  shall  suffer  accordingly. 

Section  5. 

RETURNS. 

Article  1.  Every  Officer  wlio  shall,  knowingly,  make  a  false  Return  to 
lis,  to  the  Commander  in  Chief  of  Our  Forces,  or  to  any  his  superior 
Officer,  authorized  to  call  for  such  Returns,  of  the  State  of  the  Regiment, 
Troop,  or  Company,  or  Garrison,  under  his  Command,  or  of  Arms,  Ammu- 
nition, Clothing,  or  other  Stores  thereunto  belonging,  shall,  by  a  Court 
Martial,  be  cashiered. 

Article  2.  The  Commanding  Officer  of  every  Regiment,  Troop,  or  Inde- 
pendent Company,  or  Garrison  in  South  Britain,  shall,  in  the  beginning  of 


THE  niiiTisn  articles  of  1774.  585 

every  Month,  remit  to  the  Commander  in  Chief  of  Our  Forces,  and  to  Our 
Secretary  at  War,  an  exact  Return  of  tlie  State  of  tlie  Regiment,  Troo]), 
Independent  Company,  or  Garrison,  under  his  Command,  specifying  the 
Names  of  the  Officers  not  tlien  residing  at  their  Posts,  and  tlie  Reason  for 
and  Time  of  their  Absence.  Wlioever  shall  be  convicted  of  having  through 
Neglect  or  Design  omitted  the  sending  such  Iteturns,  shall  be  punished 
according  to  the  Nature  of  his  Crime  by  the  Judgment  of  a  General  Court 

Martini. 

Article  3.  Returns  shall  be  made  in  like  Manner  of  the  State  of  Our 
Forces  in  Our  Kingdom  of  Ireland,  to  the  Chief  Governor  or  Governors 
thereof,  as  likewise  of  Our  Forces  in  North  Britain,  to  the  Oflicer  there 
Commanding  in  Chief;  which  Returns  shall  from  time  to  time,  be  remitted 
to  Us,  as  it  shall  be  best  for  Our  Service. 

Article  4.  It  is  Our  Pleasure  that  exact  Returns  of  the  State  of  Oui 
Garrisons  at  Gibralter,  and  Port  :Mahon,  and  of  Our  Regiments,  Garrisons, 
and  Independent  Companies  in  Africa,  and  America,  be,  by  their  respective 
Governors  or  Commanders  there  residing,  by  all  convenient  Opportunities, 
remitted  to  Our  Secretary  at  War,  for  their  being  laid  before  Us. 

Section  6. 
desertion". 

Article  1.  All  Officers  and  Soldiers  who,  having  received  Pay,  or  having 
been  duly  inlisted  in  Our  Service,  shall  be  convicted  of  having  deserted  the 
same  shall  suffer  Death,  or  such  other  Punishment  as  by  a  Court  Martial 
shall  be  inflicted. 

Article  2.  Any  Non  Commissioned  Officer  or  Soldier  -who  shall  without 
leave  from  his  Commanding  Officer,  absent  himself  from  his  Troop,  or  Com- 
pany, or  from  any  Detachment,  with  which  he  shall  be  commanded,  shall, 
upon  being  convicted  thereof,  be  punished  according  to  the  Nature  of  his 
Offence  at  the  Discretion  of  a  Court  Martial. 

Article  3.  No  Non  Commissioned  Officer  or  Soldier  shall  inlist  himself 
in  any  other  Regiment,  Troop,  or  Company  without  a  regular  Discharge 
from  the  Regiment,  Troop,  or  Company,  in  which  he  has  last  served,  on  the 
Penalty  of  being  reputed  as  a  Deserter,  and  suffering  accordingly;  and  in 
case  any  Officer  shall  knowingly  receive  and  entertain  such  Non  Commis- 
sioned Officer  or  Soldier,  or  shall  not,  after  his  being  discovered  to  be  a 
Deserter,  immediately  confine  him.  and  give  Notice  thereof  to  the  Corps  in 
which  he  last  served,  lie,  the  said  Officer,  so  offending  shall,  by  a  Court 
Martial,  be  cashiered. 

Article  4.  Whatsoever  Officer  or  Soldier  shall  be  convicted  of  having 
advised  or  persuaded  any  other  Officer  or  Soldier  to  desert  Our  Service,  shall 


586  APPENDIX  B. 

suffer  such  Punishment  as  shall  be  inflicted  upon  him  by  the  sentence  of  a 
Court  Martial. 

Section  7. 

quarrels  and  sending  challenges. 

Article  1.  No  Officer  or  Soldier  shall  use  any  reproachful  or  provoking 
Speeches  or  Gestures  to  another  upon  pain,  if  an  Officer,  of  being  put  in 
Arrest,  if  a  Soldier,  imprisoned,  and  of  asking  Pardon  of  the  Party  offended 
in  the  Presence  of  the  Commanding  Officer. 

Article  2.  No  Officer  or  Soldier  shall  presume  to  send  a  Challenge  to  any 
other  Officer  or  Soldier,  to  fight  a  Duel,  upon  Pain,  if  a  Commissioned 
Officer,  of  being  cashiered,  if  a  Non  Commissioned  Officer  or  Soldier,  of  suf- 
fering Corporal  Punishment,  at  the  Discretion  of  a  Court  Martial. 

Article  3.  If  any  Commissioned  or  Non  Commissioned  Officer  command- 
ing a  Guard,  shall  knowingly  and  willingly  suffer  any  Person  whatsoever  to 
go  forth  to  fight  a  Duel,  he  shall  be  punished  as  a  Challenger,  and  likewise 
all  Seconds,  Promoters,  and  Carriers  of  Challenges,  in  order  to  Duels,  shall 
be  deemed  as  Principals,  and  be  punished  accordingly. 

Article  4.  All  Officers  of  what  Condition  soever,  have  Power  to  Part  and 
quell  all  Quarrels,  Frays,  and  Disorders,  tho'  the  Persons  concerned,  shall 
belong  to  another  Kegiment,  Troop,  or  Company,  and  either  to  order  Officers 
into  Arrest,  or  Non  Commissioned  Officers  or  Soldiers  to  Prison,  'till  their 
proper  superior  Officers  shall  be  acquainted  therewith;  and  whoever  shall 
refuse  to  obey  such  Officer  (tho'  of  an  inferior  Rank)  or  shall  draw  his  Sword 
upon  liim,  shall  be  punished  at  the  Discretion  of  a  General  Court  Martial. 

Article  5.  Whatsoever  Officer  or  Soldier  shall  upbraid  another  for  refus- 
ing a  Challenge,  shall,  himself,  be  punished  as  a  Challenger.  And  We  hereby 
acquit  and  Discharge  all  Officers  and  Soldiers  of  any  Disgrace  or  Opinion  of 
Disadvantage,  which  might  arise  from  their  having  refused  to  accept  of 
Challenges,  as  they  will  only  have  acted  in  Obedience  to  Our  Orders,  and 
done  their  Duty  as  good  Soldiers,  who  subject  themselves  to  Discipline. 

Section  8. 
suttling. 

Article  1.  No  Suttler  shall  be  permitted  to  sell  any  kind  of  Liquors  or 
Victuals,  or  is  keep  their  Houses  or  Shops  open  for  the  Entertainment  of 
Soldiers  after  Nine  at  Night,  or  before  the  Ideating  of  the  Reveilles,  or  upon 
Sundays,  during  Divine  Service  or  Sermon,  on  the  Penalty  of  being  dis- 
missed from  all  future  Suttling. 

Article  2.  All  Officers,  Soldiers,  and  Suttlers,  shall  have  full  Liberty  to 
bring  into  any  of  Our  Forts  or  Garrisons  any  Quantity  or  Species  of  Provi- 


THE  n';rffsif  Ainiri.Es  ay  rr.i,.  O'^^T 

sions  J]attible  or  Drinkuble,  except  wliere  any  Contract  or  Contracts  are  or 
sliull  be  entere;l  into  by  Us,  or  by  Our  Order,  for  furnisliing  Such  Provi- 
sions, and  witli  respect  only  to  the  Species  of  Provisions  so  contracted  for. 

Article  3.  All  (Jovernors,  Lieutenant  Governors,  and  Officers  Command- 
ing in  Our  l''orts,  Harracks,  or  Giarrisons  are  hereby  required  to  see  that  the 
Persons  jjermitted  to  suttle,  shall  sup])ly  the  Soldiers  with  good  and  whole- 
some Provisions  at  the  Market  Price,  as  they  shall  be  answerable  to  Us  for 
their  Xf\i,dect. 

Article  4.  No  Governors  or  Officers  commanding  in  any  of  Our  (iarri- 
sons.  Forts,  or  Barracks,  shall,  either  themselves,  exact  exorbitant  Prices  for 
Houses  or  Stalls  let  out  to  Suttlers,  or  shall  connive  at  the  like  Exactions  in 
others,  nor  by  their  own  Authority  and  for  their  Private  Advantage,  shall 
they  lay  any  Duty  or  Imposition  upon,  or  be  interested  in,  the  sale  of  such 
Victuals,  Liquors,  or  other  Necessaries  of  Life  which  are  brought  into  the 
(rarrison,  Fort,  or  Barrjicks,  for  the  use  of  the  Soldiers,  on  the  Penalty  of 
being  discharged  from  Our  Service. 

Section  9. 
quarters. 

Article  1.  No  Officer  shall  demand  Billets  for  quartering  more  than  his 
effective  Men,  nor  shall  he  quarter  any  Wives,  Children,  Men  or  Maid  Ser- 
vants in  the  Houses  assigned  for  the  quartering  of  Officers  or  Soldiers  with- 
out the  Consent  of  the  Owners,  nor  shall  he  take  money  for  the  freeing  of 
Landlords  from  the  quartering  of  Officers  or  Soldiers;  if  a  Commissioned 
Officer  so  offending,  he  shall  be  .cashiered;  if  a  Non  Commissioned  Officer, 
he  shall  be  reduced  to  a  Private  Centinel,  and  suffer  such  Corporal  Punish- 
ment as  shall  be  inflicted  upon  him  by  the  Sentence  of  a  Court  Martial. 

Article  2.  Every  Officer  commanding  a  Regiment,  Troop,  or  Company 
or  Party,  Avhether  in  settled  Quarters,  or  upon  a  March,  shall  take  care  that 
his  own  Quarters,  as  also  the  Quarters  of  every  Officer  and  Soldier  under  his 
Command,  be  regularly  cleared  at  the  end  of  every  week,  according  to  the 
"Rules  specified  by  the  Act  of  Parliament  now  in  force;  but  in  case  any  such 
Regiment,  Troop,  or  Company,  or  Party  be  ordered  to  march  before  ^loney 
may  be  come  to  the  Haiuls  of  the  Commanding  Officer  aforesaid,  he  is  hereby 
required  to  see  that  the  Accounts  with  all  Persons  who  shall  have  Money 
due  to  them  for  the  quartering  of  Officers  aiul  Soldiers  be  exactly  stated, 
specifying  what  sum  is  then  justly  due  to  him,  as  likewise  the  Regiment, 
Troop,  or  Company,  to  which  the  Officers  and  Soldiers  so  indebted  to  him 
belong,  and  is,  by  the  first  Opportunity,  to  remit  Duplicates  of  tiie  said 
Certificates  to  Our  Paymaster  General.  Any  Commanding  Officer  wlio 
shall  refuse  or  neglect  the  making  up  of  such  Accounts,  and  certifying  the 
same  as  is  above  directed,  shall  be  cashiered. 


588  APPENDIX  B. 

Article  3.  Tlie  Commanding  Officer  of  every  Regiment,  Troop,  or  Com- 
pany, or  Detiichment,  shall,  upon  their  lirst  coming  to  any  City,  Town,  or 
Vilhige,  where  they  are  to  remain  in  Quarters  cause  Public  Proclamation  to 
be  made  signifying  that,  if  the  Landlords  or  other  Inhabitants  suffer  the 
Xon  Commissioned  Officers  or  Soldiers  to  contract  Debts  beyond  what  their 
daily  Subsistence  will  answer,  that  such  Debts  will  not  be  discharged.  He 
the  said  Commanding  Officer  shall,  for  refusing  or  neglecting  so  to  do,  be 
suspended  for  three  Months,  during  Avhicli  Time  liis  whole  Pay  shall  be 
applied  to  the  discharging  such  Debts  as  shall  have  been  contracted  by  the 
Xon  Commissioned  Officers  or  Soldiers  under  his  Command,  beyond  the 
amount  of  their  daily  Subsistence,  if  there  be  any  overplus  remaining  it  may 
be  returned  to  him. 

Article  4.  If  after  Public  Proclamation  be  made,  the  Inhabitants  shall 
notwithstanding,  suffer  the  Non  Commissioned  Officers  and  Soldiers  to  con- 
tract Debts  beyond  what  the  Money  issued  or  to  be  issued  out  for  their  daily 
Subsistence  will  answer,  it  will  be  at  their  own  Peril,  the  Officers  not  being 
obliged  to  discharge  the  said  Debts. 

Article  5.  Every  Officer  commanding  in  Quarters,  Garrisons,  or  on  a 
March,  shall  keep  good  order,  and  to  the  utmost  of  his  power  redress  all 
such  abuses  or  Disorders  which  may  be  committed  by  any  Officer  or  Soldier 
under  his  Command,  if  upon  Complaint  made  to  him  of  Officers  or  Soldiers 
beating  or  otherwise  ill  treating  of  their  Landlords,  or  of  extorting  more 
from  them  than  they  are  obliged  to  furnish  by  Law,  of  disturbing. Fairs  or 
^Markets,  or  of  committing  any  kind  of  Riots  to  the  disquieting  of  Our 
People,  he  the  said  Commander  who  shall  refuse  or  omit  to  see  justice  done 
on  the  Offender  or  Offenders,  and  Reparation  made  to  the  Party  or  Parties 
injured,  as  far  as  Part  of  the  Offender's  Pay  shall  enable  him  or  them,  shall, 
upon  the  Proof  thereof,  be  punished  by  a  General  Court  Martial,  as  if  he 
himself  had  committed  the  Crimes  or  Disorders  complained  of. 

Section  10, 

carkiages. 

The  Commanding  Officer  of  every  Regiment,  Troop,  or  Company,  or 
Detachment,  which  shall  be  ordered  to  march,  is  to  apply  to  the  proper 
iNIagistrates  for  the  necessary  Carriages,  and  is  to  pay  for  them  as  is  directed 
by  the  Act  of  Parliament,  taking  care  not  himself  to  abuse,  nor  to  suffer  any 
Person  under  his  command  to  boat  or  abuse  the  Wagoners,  or  other  Persons 
attending  such  Carriages,  nor  to  suffer  more  than  thirty  hundred  Weight  to 
be  loaded  on  any  Wain  or  Waggon,  so  furnished,  or  in  Proportion  on  Carts 
or  Carrs,  not  to  permit  Soldiers  (except  such  as  are  Sick  or  lame)  or  Women 
to  ride  upon  the  said  Carriages.  Whatsoever  Officer  shall  offend  herein,  or 
in  Case  of  Failure  of  Money,  shall  refuse  to  grant  Certificates  specifying  the 


THE  BRITISH  ARTICLES   OF  1774.  ^^^ 

Sums  dne  for  tlie  Use  of  such  Carriages,  and  tlie  name  of  the  Regiment, 
Troop,  or  Company  in  whose  Service  they  were  employed,  shall  be  cashiered, 
or  be  otherwise  pnnislied  according  to  the  Degree  of  his  Offence  by  a  General 
Court  Martial. 

Section  11. 

of  crimes  punishable  by  law. 

Article  1.  Whenever  any  Officer  or  Soldier  shall  be  accused  of  a  Capital 
Crime,  or  of  having  used  Violence,  or  committed  any  Offence  against  the 
Persons  or  Property  of  Our  Subjects,  such  as  is  punishable  by  the  known 
Laws  of  the  Land,  the  Commanding  Officer,  and  Officers  of  every  Regiment, 
Troop,  or  Party  to  which  the  Person,  or  Persons  so  accused  shall  belong,  are 
hereby  required,  upon  Application  duly  made  by,  or  in  behalf  of  the  Party  or 
Parties  injured,  to  use  his  utmost  Endeavours  to  deliver  over  such  accused 
Person  or  Persons  to  the  Civil  Magistrate:  And  likewise  to  be  aiding  and 
assisting  to  the  Officers  of  Justice  in  apprehending  and  securing  tlie  Person 
or  Persons  so  accused,  in  order  to  bring  them  to  a  Trial.  If  any  Command- 
ing Officer  or  Officers  shall  willfully  neglect  or  shall  refuse,  upon  the  Appli- 
cation aforesaid,  to  deliver  over  such  accused  Person  or  Persons  to  the  Civil 
Magistrates,  or  to  be  aiding  or  assisting  to  the  Officers  of  Justice,  in  appre- 
hending such  Person  or  Persons,  the  Officer  or  Officers  so  offending  shall  be 
cashiered. 

Article  2.  No  Officer  shall  protect  any  Person  from  his  Creditors  on  the 
Pretence  of  his  being  a  Soldier,  nor  any  Non  Commissioned  Officer  or 
Soldier  Avho  does  not  actually  do  all  Duties  as  snch,  and  no  farther  than  is 
allowed  by  the  present  Act  of  Parliament  and  according  to  the  true  Intent, 
and  Meaning  of  the  said  Act;  any  Officer  offending  herein,  being  convicted 
thereof  before  a  Court  Martial,  shall  be  cashiered. 

Section  12. 
of  redressing  wrongs. 

Article  1.  If  any  Officer  shall  think  himself  to  be  wronged  by  his 
Colonel,  or  the  Commanding  Officer  of  tlie  Regiment,  and  shall  upon  due 
api>lication  made  to  him,  be  refused  to  be  redressed,  he  may  complain  to  the 
General  commanding  in  Chief,  of  Our  Forces,  in  order  to  obtain  Justice, 
who  is  hereby  required  to  examine  into  the  said  Complaint,  and  either  by 
himself,  or  by  Our  Secretary  at  War,  to  make  his  report  to  Us  thereupon, 
in  order  to  receive  Our  further  Directions. 

Article  2.  If  any  inferior  Officer  or  Soldier  shall  think  himself  wronged 
by  his  Captain  or  other  Officer  commanding  the  Troop,  or  Company,  to 
which  he  belongs,  he  is  to  complain  thereof  to  the  Commanding  Officer  of 


590  APPEXDIX  B. 

the  Regiment,  who  is  hereby  required  to  summon  a  Regimental  Court 
Martial,  for  the  doing  Justice  to  the  Complainant,  from  which  Regimental 
Court  Martial,  either  Party  may,  if  he  thinks  himself  still  aggrieved,  appeal 
to  a  General  Court  Martial :  But  if  upon  a  second  Hearing  the  appeal  shall 
appear  to  be  vexatious  and  groundless,  the  Person  so  appealing,  shall  be 
punished  at  the  Discretion  of  the  said  General  Court  Martial. 

Section  13. 
of  stores,  ammunition",  etc. 

Article  1.  Whatsoever  Commissioned  Officer,  Store-keeper  or  Commis- 
sary, shall  be  convicted  at  a  General  Court  Martial  of  having  sold  (without 
a  proper  Order  for  that  pui'i^ose),  embezzled,  misapplied,  or  willfully,  or 
through  neglect,  suffered  any  of  Our  Provisions,  Forage,  Arms,  Cloathing, 
Ammunition,  or  other  Military  Stores  to  be  sjioiled  or  damaged,  the  said 
Officer,  Store-keeper  or  Commissary  so  offending,  shall  at  his  own  charge, 
make  good  the  loss  or  Damage,  and  be  dismissed  from  Our  Service,  and 
suffer  such  other  Penalty  as  by  the  Act  of  Parliament  is  inflicted. 

Article  2.  Whatsoever  Non  Commissioned  Officer  or  Soldier  shall  be 
convicted  at  a  Regimental  Court  Martial,  of  having  sold,  or  designedly  or 
through  neglect,  wasted  the  ammunition  delivered  out  to  him  to  be  employed 
in  Our  Service,  shall,  if  a  Xon  Commissioned  Officer,  be  reduced  to  a 
Private  Centinel,  and  shall  besides,  suffer  Corporal  Punishment  in  the  same 
manner  as  a  Private  Centinel  so  offending  at  the  Discretion  of  a  Regimental 
Court  Martial. 

Article  3.  Every  Non  Commissioned  Officer  or  Soldier  who  shall  be  con- 
victed at  a  Court  Martial  of  having  sold,  lost  or  spoiled  thro'  Neglect,  his 
Horse,  Arms,  Cloaths  or  Accoutrements,  shall  undergo  such  weekly 
Stoppages  (not  exceeding  the  half  of  his  Pay)  as  a  Court  Martial  shall  Judge 
sufficient  for  repairing  the  Loss  or  Damage,  and  shall  suffer  Imprisonment, 
or  such  other  Corporal  Punishment  as  his  Crime  shall  deserve. 

Article  4.  Every  Non  Commissioned  Officer  who  shall  be  convicted  at  a 
General  or  Regimental  Court-Martial,  of  having  embezzled,  or  misapplied 
any  Money  with  which  he  may  have  been  entrusted  for  the  Payment  of  the 
Men  under  his  Command,  or  for  enlisting  Men  into  Our  Service,  shall  be 
reduced  to  serve  in  the  Ranks  as  a  Private  Soldier,  be  put  under  Stoppages 
until  the  Money  be  made  good,  and  suffer  such  Corporal  Punishment  (not 
extending  to  Life  or  Limb)  as  the  Court  Martial  shall  think  fit. 

Article  5.  Every  Captain  of  a  Troop  or  Company  is  charged  with  the 
Arms,  Accoutrements,  Ammunition,  Cloathing  or  other  Warlike  Stores 
belonging  to  the  Troop,  or  Company  under  his  Command,  which  he  is  to  be 
accountable  for  to  his  Colonel,  in  Case  of  their  being  lost,  spoiled  or 
damaged,  not  by  unavoidable  Accidents,  or  on  actual  Service. 


THE  niiniSII  ARTICLES  OF  1774-  591 

Section    \\. 
of  duties  in  (^laineks,  in'  (jakuison,  ok  in'  the  fielo. 

Article  1.  All  Noii  Commissioned  Officers  and  Soldiers  who  shuU  be 
found  One  Mile  from  the  Camp,  without  Leave  in  Writing  from  their  Com- 
manding^ Officer,  shall  sutler  such  Punislimeut  as  shall  be  inflicted  \x\)0\i 
them  l)y  the  Sentence  of  a  Court  Martial. 

Article  2.  No  Officer  or  Soldier  shall  lye  out  of  his  (Quarters,  Garrison, 
or  Camp,  without  leave  from  his  superior  Officer,  upon  penalty  of  being 
punished  according  to  the  Nature  of  his  Offence  by  the  Sentence  of  a  Court- 
Martial. 

Article  3.  Every  Non  Commissioned  Officer  and  Soldier  shall  retire  to 
his  Quarters  or  Tent  at  the  Beating  of  the  Retreat:  In  default  of  which  he 
shall  be  punished  according  to  the  Nature  of  his  Offence,  by  the  Command- 
ing Officer. 

Article  4.  N"o  Officer,  Non  Commissioned  Officer,  or  Soldier  shall  fail  of 
repairing  at  the  Time  fixed  to  the  Place  of  Parade  of  Exercise,  or  other 
llendezvous  appointed  by  the  Commanding  Officer,  if  not  prevented  by  Sick- 
ness, or  some  other  evident  Necessity,  or  shall  go  from  the  said  Place  of 
Kendezvous,  or  from  his  Guard,  without  Leave  from  his  Commanding 
Officer,  before  he  shall  be  regularly  dismissed  or  relieved,  on  the  Penalty  of 
being  punished  according  to  the  Nature  of  his  Offence  by  the  Sentence  of  a 
Court  Martial. 

Article  5.  Whatsoever  Commissioned  Officer  shall  be  found  Drunk  on 
his  (hiard.  Party,  or  other  Duty  under  Arms,  shall  be  cashiered  for  it;  any 
Non  Commissioned  Officer  or  Soldier  so  offending  shall  suffer  such  Corporal 
Punishment  as  shall  be  inflicted  by  the  Sentence  of  a  Court  Martial. 

Article  6.  Whatever  Centinel  shall  be  found  sleeping  upon  his  Post,  or 
shall  leave  it  before  he  shall  be  regularly  relieved,  shall  suffer  Death,  or  such 
other  Punishment  as  shall  be  inflicted  by  the  Sentence  of  a  Court  Martial. 

Article  7.  No  Soldier  belonging  to  any  of  Our  Troops,  or  Regiments  of 
Horse,  or  Foot  Guards,  or  to  any  other  Regiment  of  Horse,  Foot,  or 
Dragoons  in  Our  Service,  shall  hire  another  to  do  his  Duty  for  him,  or  be 
excused  from  Duty,  but  in  Case  of  Sickness,  Disability  or  Leave  of  Absence, 
and  every  such  Soldier  found  guilty  of  hiring  his  Duty,  as  also  the  Party  so 
hired  to  do  another's  Duty,  shall  be  punished  at  the  next  Regimental  Court 
Martial. 

Article  8.  And  every  Non  Commissioned  Officer  conniving  at  such 
hiring  of  Dutv  as  aforesaid  shall  be  reduced  for  it;  and  everv  Commissioned 
Officer  knowing  and  allowing  of  such  ill  practices  in  Our  Service,  shall  be 
punished  by  the  Judgment  of  a  General  Court  Martial. 

Article  9.  Any  Person  belonging  to  Our  Forces  employed  in  any  of  Onr 
Dominions  beyond  the  Seas,  or  in  Foreign  Parts,  who,  by  discharging  of  Fire 


592  APPENDIX  B. 

Arms,  drawing  of  Swords,  beating  of  Drums,  or  by  any  other  means  what- 
ever, shall  occasion  false  Alarms  in  Camp,  Garrison,  or  Quarters,  shall  suffer 
Death,  or  such  other  Punishment  as  shall  be  ordered  by  the  Sentence  of  a 
General  Court  Martial. 

And  whosoever  shall  be  found  guilty  of  the  said  offence  in  Great  Britain 
or  Ireland,  Jersey,  Guernsey,  Alderney,  Sark,  or  Man,  shall  be  punished  at 
the  Discretion  of  a  General  Court  Martial. 

Article  10.  Any  Officer  or  Soldier  who  shall,  without  urgent  Necessity, 
or  without  Leave  of  his  superior  Officer,  quit  his  Platoon,  or  Division,  shall 
be  punished  according  to  the  Nature  of  his  Offence  by  the  Sentence  of  a 
Court  ]\Iartial. 

Article  11.  No  Officer  or  Soldier  shall  do  Violence  to  any  Person  who 
brin<Ts  Provisions  or  other  Necessaries  to  the  Camp,  Garrison,  or  Quarters  of 
Our  Forces,  employed  in  Foreign  Parts  on  Pain  of  Death. 

Article  12.  Whatsoever  Officer  or  Soldier  shall  misbehave  himself  before 
the  enemy,  or  shamefully  abandon  any  Post  committed  to  his  Charge,  or 
shall  speak  Words  inducing  others  to  do  the  like  sliall  suffer  Death. 

Article  13.  Whatsoever  Officer  or  Soldier  shall  misbehave  himself  before 
the  Enemy,  and  run  away,  or  shamefully  abandon  any  Fort,  Post,  or  Guard, 
which  he  or  they  shall  be  commanded  to  defend,  or  speak  W^ords  inducing 
others  to  do  the  like,  or  who,  after  Victory,  shall  quit  his  Commanding 
Officer  or  Post  to  plunder  and  pillage,  every  such  Offender  being  duly  con- 
victed thereof,  shall  be  reputed' a  Disobeyer  of  Military  Orders,  and  shall 
suffer  Death,  or  other  such  Punishment  as  by  a  General  Court  Martial  shall 
be  inflicted  on  him. 

Article  14.  Any  Person  belonging  to  Our  Forces  employed  iu  Foreign 
I'arts  who  shall  cast  away  his  Arms  and  Ammunition  shall  suffer  Death,  or 
other  such  Punishment  as  shall  be  ordered  by  the  Sentence  of  a  General 

Court  Martial. 

And  Whosoever  shall  be  found  guilty  of  the  said  Offence  in  Great 
Britain,  Ireland,  Jersey,  Guernsey,  Alderney,  Sark,  or  Man,  shall  be 
punished  at  the  Discretion  of  a  General  Court  Martial. 

Article  15.  Any  Person  belonging  to  Our  Forces  employed  in  Foreign 
Parts  who  shall  make  known  the  Watch-Word  to  any  Person  who  is  not 
entitled  to  receive  it,  according  to  the  Kules  and  Discipline  of  War,  or  shall 
presume  to  give  a  Parole  or  Watch-Word  different  from  what  he  received 
shall  suffer  Death,  or  such  other  Punishment  as  shall  be  ordered  by  the 
Sentence  of  a  General  Court  Martial. 

And  Whosoever  shall  be  found  guilty  of  the  said  offence  in  Great 
Britain,  Ireland,  Jersey,  Guernsey,  Alderney,  Sark,  or  Man,  shall  be 
punished,  at  the  Discretion  of  a  General  Court  Martial. 

Article  16.  All  Officers  and  Soldiers  are  to  behave  themselves  orderly  in 
Quarters,  and  on  their  March ;  and  whosoever  shall  commit  any  Waste  or 


THE  BRiriSU  ARTICLES  OF  lllJt.  593 

Spoil  either  in  Walks  of  Trees,  Parks,  Warrens,  Fish  Ponds,  Houses  or 
Gardens,  Corn  Fields,  Inclosures  or  Meadows,  or  shall  maliciously  destroy 
any  Property  whatsoever  belonging  to  any  of  Our  Subjects,  unless  by  Order 
of  the  then  Conunander  in  Chief  of  Our  Forces,  to  annoy  Rebels  or  other 
Enemies  in  Arms  against  Us,  he  or  they  that  shall  be  found  guilty  of 
offending  herein  shall  (besides  such  Penalties  as  tliey  are  liable  to  by  law)  be 
punished  according  to  the  Nature  and  Degree  of  the  Offence,  by  the  Judg- 
ment of  a  Reijimental  or  General  Court  Martial. 

Article  17.  Whatsoever  of  Our  Forces  employed  in  Foreign  Parts  shall 
force  a  Safe-Guard  shall  suffer  Death. 

Article  18.  Whosoever  shall  relieve  the  Enemy  with  Money,  Victuals,  or 
Ammunition,  or  shall  knowingly  harbour  or  protect  an  Enemy  shall  suffer 
Death,  or  such  other  Punishment  as  by  a  Court  Martial  shall  be  inflicted. 

Article  19.  Whosoever  shall  be  convicted  of  holding  Correspondence 
with,  or  giving  Intelligence  to  the  Enemy,  either  directly  or  indirectly 
shall  suffer  Death,  or  such  other  Punishment  as  by  a  Court  ]\rartial  shall  be 
inflicted. 

Article  20.  All  Public  Stores  taken  in  the  Enemies'  Camp,  Towns, 
Forts,  or  Magazines,  wliether  of  Artillery,  Ammunition,  Cloathing,  Forage, 
or  Provisions  shall  be  secured  for  Our  Service,  for  the  Xegiect  of  which  Our 
Commanders  in  Chief  are  to  be  answerable. 

Article  21.  If  any  OfKcer  or  Soldier  shall  leave  his  Post  or  Colours  to  go 
in  search  of  Plunder,  he  shall  upon  being  convicted  thereof,  before  a  General 
Court  Martial,  suffer  Death,  or  such  other  Punishment  as  by  a  Court  Mar- 
tial shall  be  inflicted. 

Article  22.  If  any  Governor  or  Commandant  of  any  Garrison,  Fortress 
or  Post,  shall  be  compelled  by  the  Officers  or  Soldiers  under  his  Command, 
to  give  up  to  the  Enemy,  or  to  abandon  it,  the  Commission  Officers,  Nou 
Commission  Officers,  or  Soldiers  who  shall  be  convicted  of  having  so 
offended,  shall  suffer  Death,  or  such  other  Punishment  as  may  be  inflicted 
upon  them  by  the  sentence  of  a  Court  Martial. 

Article  23.  All  Suttlers  and  Retainers  to  a  Camp,  and  all  Persons  what- 
soever, serving  with  Our  Armies  in  the  Field,  though  no  inlisted  Soldiers, 
are  to  be  subject  to  Orders  according  to  the  Rules  and  Discipline  of  War. 

Article  24.  Officers  having  Brevetts  or  Commissions  of  a  prior  Date  to 
those  of  tilt'  Regiment  in  which  they  now  serve,  may  take  place  in  Courts 
Martial,  and  on  Detachments,  when  composed  of  dirTerent  Corps,  according 
to  the  Rank  given  them  in  their  Hrevetts  or  Dates  of  their  former  Commis- 
sions. But  in  the  Regiment,  Troop,  or  Company  to  which  such  Brevett 
Officers,  and  those  who  have  Commissions  of  a  prior  Date,  do  belong,  they 
shall  do  Duty  and  take  Rank  both  on  Courts  Martial  and  on  Detachments, 
which  shall  be  composed  only  of  their  own  Corps  according  to  the  Commis- 
sions bv  which  they  are  mustered  in  the  said  Corps. 


594  APPENDIX  B. 

Article  25.  If  upon  ^Marclies,  Guards,  or  in  Quarters,  any  of  Our  Troops 
of  Horse  Guards,  Grenadier  Guards,  or  Kegiment  of  Horse  Guards,  shall 
happen  to  join  or  to  do  Duty  together,  the  eldest  Ofiticer  by  Commission 
there  on  Duty,  or  in  Quarters,  shall  command  the  whole,  and  give  out 
Orders  for  what  is  needful  to  Our  Service,  Uegard  being  always  had  to  the 
several  Kanks  of  those  Corps,  and  the  Posts  they  usually  occupy. 

Article  26.  And  in  like  manner  also  if  any  Regiments,  Troops,  or 
Detachments  of  Our  Horse  or  Foot  Guards,  shall  happen  to  march  with,  or 
be  encamped  or  quartered  with  any  Bodies  or  Detachments  of  Our  other 
Troops,  the  eldest  Officer,  without  resjiect  to  CorjDS,  shall  take  upon  him  the 
Command  of  the  whole,  and  give  the  necessary  Orders  to  Our  Service. 

Article  27.  When  Our  Regiment  of  Foot  Guards,  or  Detachments  from 
Our  said  Regiments,  shall  do  Duty  together,  unmixed  with  other  Corps, 
they  shall  be  considered  as  one  Corps,  and  tiie  Officers  shall  take  Rank,  and 
do  Duty  according  to  the  Commissions  by  which  they  are  mustered. 

• 

Sectiox  15. 
administkation  of  justice. 

Article  1.  A  General  Court  Martial  in  Our  Kingdoms  of  Great  Britain 
or  Ireland  shall  not  consist  of  less  than  thirteen  Commissioned  Officers,  and 
the  President  of  such  Court  Martial  shall  not  be  the  Commander  in  Chief, 
or  Governor  of  the  Garrison  where  the  Offender  shall  be  tryed,  nor  be  under 
the  Degree  of  a  Field  Officer. 

Article  2.  A  General  Court  Martial  held  in  (Jur  Garrison  of  Gibralter, 
Island  of  Minorica,  or  in  any  other  place  beyond  the  Seas  (except  within 
the  Garrisons  of  Goree  and  Senegal,  or  upon  any  T>('tachnients  made  there- 
from) shall  not  consist  of  less  than  thirteen  Commissioned  Officers:  Bnt  in 
the  said  Garrisons  of  Goree  and  Senegal,  or  upon  any  Detachments  made 
therefrom  a  General  Court  Martial  may  consist  of  any  Number  of  Commis- 
sioned Officers  not  less  than  five,  and  the  President  shall  not  be  under  the 
Degree  of  a  Field  Officer,  unless  Avhere  a  Field  Officer  cannot  be  had,  nor 
shall  in  any  Case  wliatever  be  the  Commander  in  Chief  or  Governor  of  the 
Garrison  where  the  Oifender  shall  be  tried,  nor  under  the  Degree  of  a 
Captain. 

Article  3.  Wliereas  these  Our  Rules  and  Articles  are  to  be  observed  by, 
and  do  in  all  Respects  regard  Our  Troops  and  Regiments  of  Horse  and  Foot 
Guards,  as  well  as  Our  other  Forces,  and  that  several  Disputes  have  arisen, 
and  mav  arise,  between  the  Officers  of  Our  Horse  and  Foot  Guards,  in  rela- 
tion  to  their  holding  of  Courts  Martial,  and  also  among  the  Officers  of  Our 
Troops  of  Horse  Guards,  (Grenadier  Guards,  and  Regiments  of  Horse 
Guards,  on  that  and  other  Points  of  Duty:  AVe  do  therefore  herein  declare 
it  to  be  Our  Will  and  Pleasure,  that,  when  any  Officer  or  Soldier  belonging 


THE  BRITISH  ARTICLES  OF  1174.  ^^^5 

to  Our  said  Troops  nf  llursc  (Iiiurds,  (Ireiiailier  (iuardi,  or  Kegjriieiit  of 
Horse  (iiiards,  shall  hapi»en  to  be  brought  before  a  (Jeneral  Court  Martial 
for  Differences  arising  purely  among  themselves,  or  for  Crimes  relating  to 
Discipline,  or  Breach  of  Orders,  such  Courts  3Iartial  shall  be  composed  of 
Otiicers  serving  in  any  or  all  of  those  Corps  of  liorse  (luards  (as  they  may 
tlien  happen  to  lie  for  their  being  most  conveniently  assembled)  where  the 
Officers  are  to  take  Post  according  to  the  Dates  and  Degrees  of  Kank 
granted  them  in  their  respective  Commissions,  without  regard  to  the 
Seniority  of  Cor]>s,  or  other  formerly  pretended  Privileges. 

Article  4.  \n  like  manner  also  the  Officers  of  Our  Three  Regiments  of 
Foot  Ouards,  when  appointed  to  hold  Courts  Martial  for  Dilferences,  or 
Crimes  as  aforesaid,  shall,  of  themselves,  compose  Courts  Martial,  and  take 
Hank  according  to  their  Commissions:  But  for  all  Disputes  or  Differences 
which  may  hapi)en  between  Officers  or  Soldiers  belonging  to  Our  said  Corps 
of  Horse  Guards,  and  other  Officers  and  Soldiers  belonging  to  Our  Regi- 
ments of  Foot  Guards,  or  between  any  Officers  or  Soldiers  belonging  to 
either  of  those  Corps  of  Horse  or  P'oot  Guards,  and  Officers  and  Soldiers  of 
Our  other  'JVoops,  the  Courts  Martial  to  be  appointed  in  such  Cases  shall  be 
equally  composed  of  Officers  belonging  to  the  Cor}>s  in  which  the  Parties 
complaining  and  complained  of,  do  then  serve,  and  the  President  to  be 
ordered  by  Turns,  beginning  first  by  an  Officer  of  one  of  Our  Troops  of 
Horse  (ruards,  and  so  on  in  course  out  of  the  other  Corps. 

Article  5.  The  Members  both  of  General  and  Regimental  Courts  Martial 
shall,  when  belonging  to  different  Corps  take  the  same  Rank  which  they 
hold  in  the  Army;  but  when  Courts  Martial  shall  be  composed  of  Officers  of 
one  Corps,  they  shall  take  their  Ranks  according  to  the  Dates  of  the  Com- 
missions by  which  they  are  mustered  in  the  said  Corps. 

Article  6.  The  Judge  Advocate  General,  or  some  Person  deputed  by 
him,  shall  prosecute  in  His  Majesty's  Name;  and  in  all  Trials  of  Offenders 
by  General  Courts  Martial  administer  to  each  Member  the  following  Oaths. 
*'  You  shall  well  and  truly  try  and  determine  according  to  your  Evidence, 
the  Matter  now  before  You,  between  Our  Sovereign  Lord  the  King's 
Majesty,  and  the  Prisoner  to  be  tried." 

I,  A.  R.,  do  swear  that  I  will  duly  administer  Justice  according  to  the 
Rules  and  Articles  for  the  better  Government  of  His  Majesty's  Forces,  and 
according  to  an  Act  of  Parliament  now  i)i  Force  for  the  Punishment  of 
Mutiny  and  Desertion,  and  other  Crimes  therein  mentioned,  without  Par- 
tiality, Favour  or  affection;  and  if  any  Doubt  shall  arise  which  is  not 
explained  by  the  said  Articles  or  Act  of  Parliament,  according  to  my  Con- 
science, the  best  of  my  Understanding,  and  the  Custom  of  War  in  the  like 
Cases.  And  I  do  further  swear  that  I  will  not  divulge  the  Sentence  of  the 
Court,  until  it  shall  be  approved  of  by  His  Majesty,  or  by  some  Person  duly 
authorized  by  him.     Neither  will  I,  ujion  any  Ai-cdunt  at  any  Time  what. 


596  APPENDIX  B. 

soever,  disclose  or  discover  the  Vote  or  Opinion  of  any  particular  Member 
of  the  Court  Martial  unless  required  to  give  Evidence  thereof  as  a  witness 
by  a  Court  of  Justice  in  a  due  course  of  Law. 

And  as  soon  as  the  said  Oath  shall  have  been  administered  to  the  respec- 
tive Members,  the  President  of  the  Court  shall  administer  to  the  Judge 
Advocate,  or  Person  officiating  as  such,  an  Oath  in  the  following  Words. 

I,  A.  B.,  do  swear  that  I  will  not  upon  any  Account,  at  any  Time  what- 
soever, disclose  or  discover  the  Vote  or  Opinion  of  any  Particular  Member 
of  the  Court  Martial,  unless  required  to  give  Evidence  thereof  as  a  Witness 
by  a  Court  of  Justice  in  a  due  Course  of  Law. 

Article  7.  All  the  Members  of  a  Court  Martial  are  to  behave  with 
Decency,  and  in  the  giving  of  their  Votes,  are  to  begin  with  the  Youngest. 

Article  8.  All  Persons  who  give  Evidence  before  a  General  Court  Martial 
are  to  be  examined  upon  Oath,  and  no  Sentence  of  Death  shall  be  given 
against  any  Offender  by  any  General  Court  Martial,  except  in  the  Garrisons 
of  Goree  and  Senegal,  or  upon  any  Detachments  made  therefrom,  unless 
K'ine  Officers  present  shall  concur  therein,  nor  shall  such  Sentence  be  given 
in  any  Case  where  a  Court  Martial  shall  consist  of  more  Officers  than 
thirteen,  nor  within  the  Garrison  of  Goree  and  Senegal,  or  upon  any  De- 
tachment made  therefrom  wlien  a  Court  Martial  shall  consist  of  a  lesser 
Number  of  Officers  without  the  concurrence  of  two  thirds  of  the  Officers 
present. 

Article  9.  Xo  Field  Officer  shall  be  tried  by  any  Person  under  the 
Degree  of  a  Captain,  nor  shall  any  Proceedings  or  Trials  be  carried  on, 
excepting  between  the  Hours  of  Eight  in  the  Morning  and  Three  in  the 
Afternoon,  except  in  Cases  which  require  an  immediate  Example. 

Article  10.  No  Sentence  of  a  General  Court  Martial  shall  be  put  in 
Execution  till  after  a  Eeport  shall  be  made  of  the  whole  Proceedings  to  Us, 
or  to  Our  Commander  in  Cliief,  or  some  other  Person  duly  authorized  by 
Us,  under  Our  Sign  Manual  to  confirm  the  same;  and  Our  or  his  Directions 
shall  be  signified  thereupon,  excepting  in  Ireland  where  the  Report  is  to  be 
made  to  the  Lord  Lieutenant,  and  to  Our  Chief  Governor  or  Governors  of 
that  Kingdom,  and  liis  or  their  Directions  are  to  be  received  thereupon. 

Article  IL  For  the  more  equitable  Decision  of  Disputes  which  may  arise 
between  Officers  and  Soldiers  belonging  to  different  Corps,  whether  they  be 
of  Our  Troops  or  Regiment  of  Horse  Guards,  Our  Three  Regiments  of  Foot 
Guards,  or  Our  other  Regiments  of  Horse  and  Foot. 

We  direct  that  the  Courts  Martial  shall  be  equally  composed  of  Officers 
belonging  to  the  Corps  which  the  Parties  in  Question  do  then  serve,  and  that 
the  President  shall  be  taken  in  Turns  beginning  with  that  Corps  which  shall 
be  eldest  in  Rank. 

Article  12.  The  Commissioned  Officers  of  every  Regiment  may,  by  the 
Appointment  of  their  Colonel  or  Commanding  Officer,  hold  Regimental 


rilE  BRITISH  ARTICLES  OF  1774.  •'>^7 

Coiirts  Martial  for  the  enquiring  into  such  Disputes  or  criminal  Matters  as 
may  come  before  them,  and  for  the  inflicting  Cor])oral  Punishments  for 
small  OfTciices,  and  shall  give  Judgment  by  the  Majority  of  Voices;  but  no 
Sentence  shall  be  executed  till  the  Commanding  Otiicer  (not  being  a  Member 
of  the  Court  Martial)  or  the  Governor  of  the  Harrison  shall  have  contirmed 
the  same. 

Article  13.  No  Regimental  Court  Martial  shall  consist  of  less  than  Five 
Officers,  excepting  in  Cases  where  tlie  Number  cannot  be  conveniently 
assembled,  when  three  may  be  sufficient,  who  are  likewise  to  determine  upon 
the  Sentence  by  the  Majority  of  Voices,  which  Sentence  is  to  be  contirmed 
by  the  Commanding  Officer  not  being  a  Member  of  the  Court  Martial. 

Article  14.  Every  Ofticer  commanding  in  any  of  Our  Forts,  Castles  or 
Barracks,  or  elsewhere,  where  the  Corps  under  his  Command  consi-sts  of 
Detachments  from  different  Regiments,  or  of  Independent  Companies,  may 
assemble  Courts  Martial  for  the  Trial  of  Offenders  in  the  same  Manner  as  if 
they  were  Regimental,  Avhose  Sentence  is  not  to  be  executed  till  it  shall  be 
confirmed  by  the  said  Commanding  Officer. 

Article  15.  No  Commissioned  Officer  shall  be  cashiered  or  dismissed 
from  Our  Service  excepting  by  an  Order  from  Us,  or  by  the  Sentence  of  a 
General  Court  Martial  approved  by  Us,  or  by  some  Person  having  Authority 
from  Us,  under  Our  Sign  ^Manual;  but  Non  Commissioned  Officers  may  be 
discharged  as  Private  Soldiers.  And  by  the  Order  of  the  Colonel  of  the 
Regiment,  or  by  the  Sentence  of  a  Regimental  Court  Martial,  be  reduced 
to  Private  Centinels. 

Article  16.  No  Person  whatsoever  shall  use  menacing  "Words,  Signs,  or 
Gestures  in  the  Presence  of  a  Court  Martial,  then  sitting,  or  shall  cause  any 
Disorder  or  Riot,  so  as  to  disturb  their  Proceedings  on  the  Penalty  of  being 
Punished  at  the  Discretion  of  the  said  Court  Martial. 

Article  17.  To  the  End  that  Offenders  may  be  brought  to  Justice,  We 
hereby  direct  that  whenever  any  Officer  or  Soldier  shall  commit  a  Crime 
deserving  Punishment,  he  shall,  by  his  Commanding  Officer,  if  an  Officer, 
be  put  in  Arrest,  if  a  Non  Commissioned  Officer  or  Soldier,  be  imprisoned 
till  he  shall  be  eitlier  tried  by  a  Court  Martial  or  shall  be  lawfully  discliarged 
by  a  proper  Authority. 

Article  18.  No  Officer  or  Soldier  who  shall  be  put  in  Arrest  or  Imprison- 
ment shall  continue  in  his  Confinement  more  than  Eight  Days,  or  till  such 
time  as  a  Court  Martial  can  be  conveniently  asseml)led. 

Article  19.  No  Officer  comnumding  a  Guard,  or  Provost  Marslml,  shall 
refuse  to  receive  or  keep  any  Prisoner  committed  to  his  Charge  by  any 
Officer  belonging  to  Our  Forces,  which  Officer  shall  at  the  same  Time, 
deliver  an  account  in  Writing  signed  by  himself  of  the  Crime  with  which 
the  said  Prisoner  is  charged. 


508  APPENDIX  B. 

Article  20.  Xo  Officer  coinniaiuling  a  (Jiuird,  or  Provost  Marshal,  shall 
piesuiiie  to  release  any  Prisoner  committed  to  his  Charge,  without  proper 
authority  for  so  doing,  nor  shall  he  suffer  any  Prisoner  to  escape  on  the 
Penalty  of  being  punished  for  it  by  the  Sentence  of  a  Court  Martial. 

Article  21.  Every  Officer  or  Provost  Marshal  to  whose  Charge  Prisoners 
sliall  be  committed,  is  hereby  required  within  Twenty-four  hours  after  such 
Commitment,  or  as  soon  as  he  shall  be  relieved  from  his  Guard,  to  give  in 
Writing  to  the  Colonel  of  the  Regiment  to  whom  the  Prisoner  belongs 
(where  the  Prisoner  is  confined  upon  the  Guard  belonging  to  the  said  Regi- 
ment, and  that  his  Offence  only  relates  to  the  Xeglect  of  Duty  in  his  own 
Corjis)  or  to  the  Commander  in  Chief,  their  Names,  their  Crimes,  and  the 
Names  of  the  Officers  who  committed  them,  on  the  Penalty  of  his  being 
punished  for  his  Disobedience  or  Neglect  at  the  Discretion  of  a  Court 
IMartial. 

Article  22.  And  if  any  Officer  under  Arrest  shall  leave  his  Confinement 
before  he  is  set  at  Liberty  by  the  Officer  who  confined  liim,  or  by  a  superior 
Power,  he  shall  be  cashiered  for  it. 

Article  23.  Whatsoever  Commissioned  Officer  shall  be  convicted  before 
a  General  Court  ^Martial  of  behaving  in  a  scandalous  infamous  Manner, 
such  as  is  unbecoming  the  Character  of  an  Officer  and  a  Gentleman  shall 
be  discharged  from  Our  Service. 


SECTioisr  16. 

ENTRY    OF    COMMISSIONS. 

All  Commissions  granted  by  Us,  or  by  any  of  Our  Generals  having 
Authoritv  from  Us,  shall  be  entered  in  the  Books  of  Our  Secretary  at  War, 
and  the  Commissary  General,  otherwise  they  will  not  be  allowed  of  at  the 
Musters. 

Section  17. 

effects  of  the  dead. 

Article  1.  When  any  Commissioned  Officer  shall  happen  to  die  or  be 
killed  in  Our  Service,  the  Major  of  tlie  Regiment,  or  the  Officer  doing  the 
]Major's  Duty  in  his  Absence,  shall  immediately  secure  all  his  Effects,  or 
Equipage  then  in  Camp  or  Quarters,  and  shall  before  the  next  Regimental 
Court  Martial  make  an  Iiiventory  thereof,  and  forthwith  transmit  the  same 
to  the  Office  of  Our  Secretary  at  \Var,  to  the  End  that  his  Executors  may 
after  Payment  of  his  Debts  and  Quarters,  and  Interment,  receive  the  Over- 
plus, if  any  be,  to  his  or  their  Use. 


THE  niilTISir  ARTICLES  OF  1774.  599 

Article  2.  When  any  Non  Commissioned  Officer  or  Private  Soldier  shall 
liappen  to  die,  or  be  killed  in  Our  Service,  the  then  Commanding  Officer  of 
the  Troop  or  Com2)any  sliall,  in  the  Presence  of  two  other  Commissioned 
Officers  take  an  Account  of  whatever  Effects  he  dies  possessed  of,  above  his 
Regimental  Cloatliing,  Arms,  and  Accoutrements,  and  transmit  the  same  to 
the  Otiice  of  Our  Secretary  at  War;  which  said  Effects  are  to  be.  accounted 
for  and  paid  to  the  Representative  of  such  deceased  Xon  Commissioned 
Officer  or  Soldier.  And  in  Case  any  of  the  Officers  so  authorized  to  take 
care  of  the  Effects  of  Dead  Officers  and  Soldiers,  should,  before  they  have 
accounted  to  their  Re2)resentatives  for  the  same,  have  occasion  to  leave  the 
Regiment  by  preferment,  or  other  wise,  they  shall,  before  they  be  permitted 
to  quit  the  same,  deposit  in  the  hands  of  the  Commanding  Officer,  or  of  the 
Agent  of  the  Regiment,  all  the  Effects  of  sucli  deceased  Xon  Commissioned 
Officers  and  Soldiers,  in  order  that  the  same  may  be  secured  for  and  paid 
to  their  respective  Representatives. 

Section  18. 
artillery. 

Article  1.  All  Officers,  Conductors,  Gunners,  Matrosses,  Drivers,  or  any 
other  Persons  whatsoever  receiving  Pay  or  Hire  in  the  Service  of  Our 
Artillery,  shall  be  governed  by  the  aforesaid  Rules,  and  Articles,  and  shall 
be  subject  to  be  tried  by  Courts  Martial  in  like  Manner  with  the  Officers  and 
Soldiers  of  Our  other  Troops. 

Article  2.  For  Differences  arising  among  themselves  or  in  Matters  relat- 
ing solely  to  their  Own  Corps,  the  Courts  Martial  may  be  composed  of  their 
own  Officers;  but  where  a  Number  sufficient  of  such  Officers  cannot  be 
assembled,  or  in  Matters  wherein  other  Corps  are  interested,  the  Officers  of 
Artillery  shall  sit  in  Courts  Martial  with  the  Officers  of  Our  other  Corps, 
taking  their  Rank  according  to  the  Dates  of  their  respective  Commissions 
and  no  otherwise. 

Section  10. 

AMERICAN    troops. 

Article  1.  The  Officers  and  Soldiers  of  any  Troops  which  are  or  shall  be 
raised  in  America,  being  mustered,  and  in  Pay,  shall,  at  all  Times,  and  in 
all  Places,  when  joined  and  acting  in  conjunction  with  Our  British  Forces, 
be  governed  by  these  Rules  and  Articles  of  War,  and  sliall  be  subject  to  be 
tried  by  Courts  Martial  in  like  Manner  with  the  Officers  and  Soldiers  of  Our 
British  Troops. 

Article  2.  Whereas  notwithstanding  the  Regulations  which  We  were 
pleased  to  make  for  settling  the  Rank  of  Provincial.  *  *  General  and  Field 


600  APPENDIX  B. 

Officers  in  North  America,  Difficulties  liuve  arisen  with  regard  to  the  Rank 
of  the  said  Officers  when  acting  in  conjunction  with  Our  Regular  Forces. 
And  We  being  Willing  to  give  due  Encouragement  to  Officers  serving  in 
Our  Provincial  Troops;  It  is  Our  Will  and  Pleasure,  that,  for  the  future, 
all  General  Officers  and  Colonels  serving  by  Commission  from  any  of  the 
Governors,  Lieutenant  or  Deputy  Governors,  or  President  of  the  Council  for 
the  Time  being  of  Our  Provinces  and  Colonies  in  North  America,  shall,  on 
all  Detachments,  Courts  Martial,  or  other  Duty,  wherein  they  may  be 
employed  in  Conjunction  Avith  Our  Regular  Forces,  take  Rank  next  after 
all  Colonels  serving  by  Commissions  signed  by  Us,  though  the  Commissions 
of  such  Provincial  Generals  and  Colonels  should  be  of  elder  Date,  and  in 
like  Manner  that  Lieutenant  Colonels,  Majors,  Captains,  and  other  inferior 
Officers  serving  by  Commission  from  the  Governors,  Lieutenant  or  Deputy 
Governors  or  Presidents  of  the  Council  for  the  time  being  of  Our  said 
Provinces  and  Colonies  in  North  America,  shall,  on  all  Detachments,  Courts- 
Martial  or  other  Duty  wherein  they  may  be  employed  in  Conjunction  with 
Our  Regular  Forces,  have  Rank  next  after  all  Officers  of  the  like  Rank, 
serving  by  Commissions  signed  by  Us,  or  by  Our  General  Commanding  in 
Chief  in  North  America,  though  the  Commissions  of  such  Lieutenant 
Colonels,  Majors,  Captains,  and  other  inferior  Officers  should  be  of  elder 
Date  to  those  of  the  like  Rank  signed  by  Us,  or  by  Our  said  General. 


Section  20. 
relating  to  the  foregoing  articles. 

Article  1.  The  foregoing  Articles  are  to  be  read  and  published  once  in 
every  two  Months  at  the  Head  of  every  Regiment,  Troop,  or  Company 
mustered  or  to  be  mustered  in  Our  Service,  and  are  to  be  duly  observed  and 
exactly  obeyed  by  all  Officers  and  Soldiers  who  are  or  shall  be  in  Our  Service 
(excepting  in  what  relates  to  the  Payment  of  Soldiers  Quarters,  and  to  Car- 
riages, which  is  in  Our  Kingdom  of  Ireland  to  be  regulated  by  the  Lord 
Lieutenant  or  Chief  Governor  or  Governors  thereof)  and  in  Our  Islands, 
Provinces  and  Garrisons  beyond  the  Seas  by  the  respective  Governors  of  the 
same  according  as  the  different  Circumstances  of  the  said  Islands,  Provinces 
or  Garrisons  may  require. 

Article  2.  Notwithstanding  its  being  directed  in  the  eleventh  Section  of 
these  Oar  Rules  and  Articles,  that  every  Commanding  Officer  is  required  to 
deliver  up  to  the  Civil  Magistrate  all  such  Persons  under  his  Command  who 
shall  be  accused  of  any  Crimes  which  are  punishable  by  the  known  Laws  of 
tihe  Land ;  yet  in  Our  Garrison  of  Gibralter,  and  Island  of  Minorca,  where 
Our  Forces  now  are,  or  in  any  other  Place  beyond  the  Seas  to  which  any  of 
Our  Troops  are  or  may  be  hereafter  commanded,  and  where  there  is  no 


TUE  BRITISH  AUTJCLES  OF  1:14.  601 

Form  of  Our  Civil  Judicjitnre  in  Force,  the  General.-^,  or  Governor^-,  or 
Commanders  res})ectively,  are  to  aj)point  (General  Courts-Martial  to  be  held, 
who  are  to  try  all  Persons  guilty  oi"  wilful  Murder,  Theft,  Robbery,  Rapes, 
Coining  or  Cli])ping  the  Coin  of  Great  Britain,  or  of  any  Foreign  Coin  cur- 
rent in  the  Country  or  garrison,  and  all  other  ('a])ital  Crimes,  or  other 
Oll'ences,  and  pujiish  Oifenders  witli  Death,  or  otlierwise  as  the  Nature  of 
their  Crimes  shall  deserve. 

Article  3.  All  Crimes  not  Capital  and  all  Disorders  and  Neglects  which 
Ofticers  and  Soldiers  may  be  guilty  of  to  the  Prejudice  of  good  Order  and 
^Military  Discipline,  though  not  mentioned  in  tlie  above  Articles  of  "War  are 
to  be  taken  Cognizance  of  by  a  General  or  Regimental  Court  Martial, 
according  to  the  Nature  and  Degree  of  the  Oii'ence,  and  be  punished  at 
their  Discretion. 

(Initd.)  G.  R. 


APPENDIX  C. 
AMERICAN  ARTICLES   OF  1S76.' 

Resolved,  That  from  and  after  the  publication  of  the  following  Articles, 
in  tiie  respective  armies  of  the  United  States,  the  Rules  and  Articles  by 
which  the  said  armies  have  heretofore  been  governed  shall  be,  and  they  are 
hereby,  repealed: 

Section  I. 

Article  1.  That  every  officer  who  shall  be  retained  in  the  army  of  the 
United  States,  shall,  at  the  time  of  his  acceptance  of  his  commission,  sub- 
scribe these  rules  and  regulations. 

Article  2.  It  is  earnestly  recommended  to  all  officers  and  soldiers  dili- 
gently to  attend  divine  service;  and  all  officers  and  soldiers  who  shall  behave 
indecently,  or  irreverently,  at  any  place  of  divine  worship,  shall,  if  commis- 
sioned officers,  be  brought  before  a  general  court-martial,  there  to  be  pub- 
licly and  severely  reprimanded  by  the  president;  if  non-commissioned  officers 
or  soldiers,  every  person  so  offending  shall,  for  his  first  offence,  forfeit  -^th 
of  a  dollar,  to  be  deducted  out  of  his  next  pay;  for  the  second  offence,  he 
shall  not  only  forfeit  a  like  sum.  but  be  confined  for  twenty-four  hours;  and, 
for  every  like  offence,  sliall  suffer  and  pay  in  like  manner;  which  money,  so 
forfeited,  shall  be  applied  to  the  use  of  the  sick  soldiers  of  the  troop  or  com- 
pany to  which  the  offender  belongs. 

Article  3.  AVhatsoever  non-commissioned  officer  or  soldier  shall  use  any 
prophane  oath  or  execration,  shall  incur  the  penalties  expressed  in  the  fore- 
going article;  and  if  a  commissioned  officer  be  thus  guilty  of  projihane  curs- 
ing or  swearing,  he  shall  forfeit  and  pay,  for  each  and  every  such  offence, 
two-thirds  of  a  dollar. 

Article  4.  Every  chaplain  who  is  commissioned  to  a  regiment,  company, 
troop,  or  garrison,  and  shall  absent  himself  from  the  said  regiment,  com- 

'  Enacted  by  Resolution  of  Congress,  September  20,  1876.  For  a  history  of  tliese 
Articles  see  the  chapter  entitled  The  Aktici.es  op  War.  This  set  replaced  the  Articles 
enacted  by  Resolution  of  (Joncrress,  .June  SJO,  1775,  and  the  additional  Articles  similarly 
enacied  on  Xovetnber  7,  177.").  They  were  amended  hy  the  Resolution  of  Congress  o"f 
May  31,  1786,  and  were  replaced  by  the  Articles  of  "War  adopted  by  Congress  on  April 
10,  1806. 

602 


AMERICANS    AliTlL'LES   OF  1776.  603 

pany,  troop,  or  garrison,  (excepting  in  case  of  sickness  or  leave  of  absence,) 
shall  be  brought  to  a  court-martial,  and  be  lined  not  exceeding  one  UKjnth's 
pay,  besides  tlie  loss  of  liis  pay  during  his  absence,  or  be  discharged,  as  the 
said  court-martial  shall  judge  most  proper. 

Section  II. 

Article  1.  Whatsoever  officer  or  soldier  shall  presume  to  use  traitorous 
or  disrespectful  words  against  the  authority  of  the  United  States  in  Congress 
assembled,  or  tlie  legislature  of  any  of  the  United  States  in  which  he  may  be 
quartered,  if  a  commissioned  officer,  he  shall  be  cashiered;  if  a  non-commis- 
sioned officer  or  soldier,  he  shall  suffer  such  punishment  as  shall  be  inflicted 
upon  him  by  the  sentence  of  a  court-martial. 

Article  2.  Any  officer  or  soldier  who  shall  behave  himself  with  contempt 
or  disrespect  towards  the  general,  or  other  commander-in-chief  of  the  forces 
of  the  United  States,  or  shall  speak  words  tending  to  his  hurt  or  dishonor, 
shall  be  punished  according  to  the  nature  of  his  offence,  by  the  judgment  of 
a  court-martial. 

Article  3.  Any  officer  or  soldier  who  shall  begin,  excite,  cause  or  join, 
in  any  mutiny  or  sedition,  in  the  troop,  company,  or  regiment  to  which  he 
belongs,  or  in  any  other  troop  or  company  in  the  service  of  the  United 
States,  or  in  any  part,  post,  detachment  or  guard,  on  any  pretence  what- 
soever, shall  suffer  death,  or  such  other  punishment  as  by  a  court-martial 
shall  be  inflicted. 

Article  4.  Any  officer,  non-commissioned  officer,  or  soldier,  wlio,  being 
present  at  any  mutiny  or  sedition,  does  not  use  his  utmost  endeavor  to  sup- 
press the  same,  or  coming  to  the  knowledge  of  any  intended  mutiny,  does 
not,  without  delay,  give  information  thereof  to  his  commanding  officer,  shall 
be  punished  by  a  court-martial  with  death,  or  otherwise,  according  to  the 
nature  of  the  offence. 

Article  5.  Any  officer  or  soldier  wlio  .-^liall  strike  his  superior  officer,  or 
draw,  or  shall  lift  up  any  weapon,  or  offer  any  violence  against  him.  being 
in  the  execution  of  his  office,  on  any  pretence  whatsoever,  or  shall  disobey 
any  lawful  command  of  his  superior  officer,  shall  suffer  death,  or  such  other 
punishment  as  shall,  according  to  the  nature  of  his  offence,  be  inflicted  upon 
him  bv  the  sentence  of  a  court-martial. 

Section  III. 

Article  1.  Every  non-commissioned  officer  and  soldier,  who  shall  inlist 
himself  in  the  service  of  the  United  States,  shall  at  the  time  of  his  so  inlist- 
ing,  or  within  six  days  afterwards,  have  the  articles  for  the  government  of 
the  forces  of  the  United   States  read   to  him,  and  shall,  bv  the  officer  who 


604  APPENDIX   a 

inlisted  him,  or  by  the  commandiug  oilicer  of  the  troop  or  compauy  into 
wliich  he  was  inlisted,  be  taken  before  the  next  justice  of  the  peace,  or  chief 
ma^^istrate  of  any  city  or  town-corporate,  not  being  an  officer  of  the  army, 
or,  wliere  recourse  cannot  be  liad  to  the  civil  magistrate,  before  the  judge 
advocate,  and,  in  his  presence,  shall  take  the  following  oath,  or  affirmation, 
if  conscientiously  scrupulous  about  taking  an  oath : 

I  swear,  or  affirm,  (as  the  case  may  be,)  to  be  true  to  the  United  States 
of  America,  and  to  serve  them  honestly  and  faithfully  against  all  their  enemies 
or  opposers  whatsoever;  and  to  observe  and  obey  the  orders  of  the  Con- 
tinental Congress,  and  the  orders  of  the  generals  and  officers  set  over  me  by 

them . 

"Which  justice  or  magistrate  is  to  give  the  officer  a  certificate,  saying  that 
the  man  inlisted  did  take  the  said  oath  or  affirmation. 

Article  2.  After  a  non-commissioned  officer  or  soldier  shall  have  been 
duly  inlisted  and  sworn,  he  shall  not  be  dismissed  the  service  without  a  dis- 
charge in  writing;  and  no  discharge,  granted  to  him,  shall  be  allowed  of  as 
sufficient,  which  is  not  signed  by  a  field  officer  of  the  regiment  into  which  he 
was  inlisted,  or  commanding  officer,  where  no  field  officer  of  the  regiment  is 
in  the  same  state. 

Section  IV. 

Article  1.  Every  officer  commanding  a  regiment,  troop,  or  company, 
shall,  upon  the  notice  given  to  him  by  the  commissary  of  musters,  or  from 
one  of  his  deputies,  assemble  the  regiment,  troop,  or  company,  under  his 
command,  in  the  next  convenient  place  for  their  being  mustered. 

Article  2.  Every  colonel  or  other  field  officer  commanding  the  regiment, 
troop,  or  company,  and  actually  residing  with  it,  may  give  furloughs  to  non- 
commissioned officers  and  soldiers,  in  such  numbers,  and  for  so  long  a  time, 
as  he  shall  jndge  to  be  most  consistent  with  the  good  of  the  service;  but,  no 
non-commissioned  officer  or  soldier  shall,  by  leave  of  his  captain,  or  inferior 
officer,  commanding  the  troop  or  company  (his  field  officer  not  being  pres- 
ent) be  absent  above  twenty  days  in  six  months,  nor  shall  more  than  two 
private  men  be  absent  at  the  same  time  from  their  troop  or  company,  except- 
ing some  extraordinary  occasion  shall  require  it,  of  which  occasion  the  field 
officer,  present  with,  and  commanding  the  regiment,  is  to  be  the  judge. 

Article  3.  At  every  muster,  the  commanding  officer  of  each  regiment, 
troop,  or  company,  there  present,  shall  give  to  the  commissary,  certificates 
signed  by  himself,  signifying  how  long  such  officers,  who  shall  not  appear  at 
the  said  muster,  have  been  absent,  and  the  reason  of  their  absence;  in  like 
manner,  the  commanding  officer  of  every  troop  or  company  shall  give  cer- 
tificates, signifying  the  reasons  of  the  absence  of  the  non-commissioned 
officers  and  private  soldiers;  which  reasons,  and  time  of  absence,  shall  be 


AMERICAN  ARTICLES   OF  1776.  605 

inserted  in  the  muster-rolls,  opposite  to  the  names  of  tlie  respective  absent 
officers  and  soldiers:  The  said  certilicates  shall,  together  with  the  muster- 
rolls,  be  remitted  by  the  commissary  to  the  Congress,  as  speedily  as  the  dis- 
tance of  place  will  admit. 

Article  4.  Every  ot!icer  who  shall  be  convicted  before  a  general  court- 
martial  of  having  signed  a  false  certificate,  relating  to  tlie  absence  of  either 
officer  or  private  soldier,  shall  be  cashiered. 

Article  5.  Every  officer  who  shall  knowingly  make  a  false  muster  of  man 
or  horse,  and  every  otticer  or  commissary  w  ho  shall  willingly  sign,  direct,  or 
allow  the  signing  of  the  muster-rolls,  wherein  such  false  muster  is  contained, 
shall,  upon  proof  made  thereof  by  two  witnesses  before  a  general  court- 
martial,  be  cashiered,  and  shall  be  thereby  utterly  disabled  to  have  or  hold 
any  office  or  employment  in  the  service  of  the  United  States. 

Article  6.  Any  commissary  who  shall  be  convicted  of  having  taken 
money,  or  any  other  thing,  by  way  of  gratification,  on  the  mustering  of  any 
regiment,  troop,  or  company,  or  on  the  signing  the  muster-rolls,  shall  be 
displaced  from  his  office,  and  shall  be  thereby  utterly  disabled  to  have  or 
hold  any  office  or  employment  under  the  United  States. 

Article  7.  Any  ofllicer  who  sliall  presume  to  muster  any  person  as  a  sol- 
dier, who  is.  at  other  times,  accustomed  to  wear  a  livery,  or  who  does  not 
actually  do  his  duty  as  a  soldier,  shall  be  deemed  guilty  of  having  made  a 
false  muster,  and  shall  suffer  accordingly. 


Section  V. 

Article  1.  Every  officer  who  shall  knowingly  make  a  false  return  to  the 
Congress,  or  any  committee  thereof,  to  the  commander  in  chief  of  the  forces 
of  the  United  States,  or  to  any  his  superior  officer  authorized  to  call  for 
such  returns,  of  the  state  of  the  regiment,  troop,  or  company,  or  garrison, 
under  his  command,  or  of  arms,  ammunition,  clothing,  or  other  stores 
thereunto  belonging,  shall,  by  a  court-martial,  be  cashiered. 

Article  2.  The  commanding  officer  of  every  regiment,  troop,  or  inde- 
pendent company,  or  garrison  of  the  United  States,  shall,  in  the  beginning 
of  every  month,  remit  to  the  commander  in  chief  of  the  American  forces, 
and  to  the  Congress,  an  exact  return  of  the  state  of  the  regiment,  troop,  in- 
dependent company,  or  garrison  under  his  command,  specifying  the  names 
of  the  officers  not  then  residing  at  their  posts,  and  the  reason  for,  and  time 
of.  their  absence:  Whoever  shall  be  convicted  of  having,  through  neglect  or 
design,  omitted  the  sending  such  returns,  shall  be  punished  according  to  the 
nature  of  his  crime,  by  the  judgment  of  a  general  court-martial. 


C06  APPENDIX  C. 


Section  YI. 


Article  1.  All  officers  and  soldiers,  who  having  received  pay,  or  having 
been  duly  inlisted  in  the  service  of  the  United  States,  shall  be  convicted  of 
having  deserted  the  same,  shall  suffer  death,  or  such  other  punishment  as  by 
a  court-martial  shall  be  inflicted. 

Article  2.  Any  non-commissioned  officer  or  soldier,  who  shall,  without 
leave  from  his  commanding  officer,  absent  himself  from  his  troop  or  com- 
pany, or  from  any  detachment  with  which  he  shall  be  commanded,  shall, 
upon  being  convicted  thereof,  be  punished,  according  to  the  nature  of  his 
offence,  at  the  discretion  of  a  court-martial. 

Article  3.  Xo  non-commissioned  officer  or  soldier  shall  inlist  himself  in 
any  other  regiment,  troop  or  company,  without  a  regular  discharge  from  the 
regiment,  troop  or  company,  in  which  he  last  served,  on  the  penalty  of  being 
reputed  a  deserter,  and  suffering  accordingly :  And  in  case  any  officer  shall, 
knowingly,  receive  and  entertain  such  non-commissioned  officer  or  soldier, 
or  shall  not,  after  his  being  discovered  to  be  a  deserter,  immediately  confine 
him,  and  give  notice  thereof  to  the  corps  in  which  he  last  served,  he,  the 
said  officer  so  offending,  shall,  by  a  court-martial,  be  cashiered. 

Article  4.  Whatsoever  officer  or  soldier  shall  be  convicted  of  having  ad- 
vised or  persuaded  any  other  officer  or  soldier  to  desert  the  service  of  the 
United  States,  shall  suffer  such  punishment  as  shall  be  inflicted  upon  him 
by  the  sentence  of  a  court-martial. 

Section  VII. 

Article  1.  Xo  officer  or  soldier  shall  use  any  reproachful  or  provoking 
speeches  or  gestures  to  another,  upon  pain,  if  an  officer,  of  being  put  in 
arrest;  if  a  soldier,  imprisoned,  and  of  asking  pardon  of  the  party  offended, 
in  the  presence  of  his  commanding  officer. 

Article  2.  No  officer  or  soldier  shall  presume  to  send  a  challenge  to  any 
other  officer  or  soldier,  to  fight  a  duel,  upon  pain,  if  a  commissioned  officer, 
of  being  cashiered,  if  a  non-commissioned  officer  or  soldier,  of  suffering  cor- 
poreal punishment,  at  the  discretion  of  a  court-martial. 

Article  3.  If  any  commissioned  or  non-commissioned  officer  commanding 
a  guard,  shall,  knowingly  and  willingly,  suffer  any  person  whiitsocver  to  go 
forth  to  fight  a  duel,  he  shall  be  punished  as  a  challenger:  And  likewise  all 
seconds,  promoters,  and  carriers  of  challenges,  in  order  to  duels,  shall  be 
deemed  as  principals,  and  be  punished  accordingly. 

Article  4.  All  officers,  of  what  conditioTi  soever,  have  power  to  part  and 
quell  all  quarrels,  frays  and  disorders,  though  the  persons  concerned  should 
belong  to  another  regiment,  troop  or  company;  and  either  to  order  officers 
into  arrest,  or  non-commissioned  officers  or  soldiers  to  prison,  till  their  proper 


AMERICAX  ARTICLES  OF  1776.  607 

superior  officers  shalt  be  acquainted  therewith;  and  whosoever  shall  refuse 
to  obey  such  officer  (though  of  an  inferior  rank)  or  sliall  draw  his  sword 
upon  him,  shall  be  punished  at  the  discretion  of  a  general  court-martial. 

Article  5.  Wliatsoever  officer  or  soldier  shall  upbraid  another  for  refus- 
ing a  challenge,  sliall  himself  be  punished  as  a  challenger;  and  all  officers 
and  soldiers  are  hereby  discharged  of  any  disgrace,  or  opinion  of  disadvan- 
tage, which  might  arise  from  their  iiaving  refused  to  accept  of  challenges, 
as  they  will  only  have  acted  in  obedience  to  the  orders  of  Congress,  and 
done  their  duty  as  good  soldiers,  who  subject  themselves  to  .discipline. 

Section  VIIL 

Article  1.  No  suttler  shall  be  permitted  to  sell  any  kind  of  liquors  or 
victuals,  or  to  keep  their  houses  or  shops  open,  for  the  entertainment  of 
soldiers,  after  nine  at  night,  or  before  the  beating  of  the  reveilles,  or  upon 
Sundays,  during  the  divine  service,  or  sermon,  on  the  penalty  of  being  dis- 
missed from  all  future  suttling. 

Article  2.  All  officers,  soldiers  and  suttlers,  shall  have  full  liberty  to  bring 
into  any  of  the  forts  or  garrisons  of  the  United  American  States,  any  quan- 
tity or  species  of  provisions,  eatable  or  drinkable,  except  where  any  contract 
or  contracts  are,  or  shall  be  entered  into  by  Congress,  or  by  their  order,  for 
furnishing  such  provisions,  and  with  respect  only  to  the  species  of  provis- 
ions so  contracted  for.  ' 

Article  3.  All  officers,  commanding  in  the  forts,  barracks,  or  garrisons 
of  the  United  States,  are  hereby  required  to  see,  that  the  persons  permitted 
to  suttle,  shall  supply  the  soldiers  with  good  and  wholesome  provisions  at 
the  market  price,  as  they  shall  be  answerable  for  their  neglect. 

Article  4.  Xo  officers,  commanding  in  any  of  the  garrisons,  forts,  or 
barracks  of  the  United  States,  shall  either  themselves  exact  exorbitant 
prices  for  houses  or  stalls  let  out  to  suttlers,  or  shall  connive  at  the  like 
exactions  in  others;  nor,  by  their  own  authority  and  for  their  private  advan- 
tage, shall  they  lay  any  duty  or  imposition  upon,  or  be  interested  in  the  sale 
of  such  victuals,  liquors  or  other  necessaries  of  life,  which  are  brought  into 
the  garrison,  fort,  or  barracks,  for  the  use  of  the  soldiers,  on  the  penalty  of 
being  discharged  from  the  service. 

Sectiox  TX. 

Article  1.  Every  officer  commanding  in  quarters,  garrisons,  or  on  a 
march,  shall  keep  good  order,  and,  to  the  utmost  of  his  power,  redress  all 
such  abuses  or  disorders  which  may  be  committed  by  any  officer  or  soldier 
under  his  command;  if.  ujion  complaint  made  to  him  of  officers  or  soldiers 


'  Repealed  anrl  replaced  by  Resolution  of  Congress  of  April  14,  1777. 


60S  APPENDIX  a 

beating,  or  otherwise  ill-treating  any  person;  of  disturbing  fairs  or  markets, 
or  of  committing  any  kind  of  riots  to  the  disquieting  of  the  good  people  of 
the  United  States ;  he  the  said  commander,  who  shall  refuse  or  omit  to  see 
justice  done  on  the  offender  or  offenders,  and  reparation  made  to  the  paily 
or  parties  injured,  as  far  as  part  of  the  offenders  pay  shall  enable  him  or 
them,  shall,  upon  proof  thereof,  be  punished,  by  a  general  court-martial,  as 
if  he  himself  had  committed  the  crimes  or  disorders  complained  of. 


Section  X. 

Article  1.  Whenever  any  officer  or  soldier  shall  be  accused  of  a  capital 
crime,  or  of  having  used  violence,  or  committed  any  offence  against  the  per- 
sons or  property  of  the  good  people  of  any  of  the  United  American  States, 
such  as  is  punishable  by  the  known  laws  of  the  land,  the  commanding  offi- 
cer and  officers  of  every  regiment,  troop,  or  party,  to  which  the  person  or 
persons  so  accused  shall  belong,  are  hereby  required,  upon  application  duly 
made  by  or  in  behalf  of  the  party  or  parties  injured,  to  use  his  utmost 
endeavors  to  deliver  over  such  accused  person  or  persons  to  the  civil  magis- 
trate; and  likewise  to  be  aiding  and  assisting  to  tlie  officers  of  justice  in 
apprehending  and  securing  the  person  or  persons  so  accused,  in  order  to 
bring  them  to  a  trial.  If  any  commanding  officer  or  officers  shall  wilfully 
neglect  or  shall  refuse,  upon  the  application  aforesaid,  to  deliver  over  such 
accused  person  or  persons  to  the  civil  magistrates,  or  to  be  aiding  andassist- 
ing  to  the  officers  of  justice  in  apprehending  such  person  or  persons,  the 
officer  or  officers  so  offending  shall  be  cashiered. 

Article  2.  No  officer  shall  protect  any  person  from  his  creditors,  on  the 
pretence  of  his  being  a  soldier,  nor  any  non-commissioned  officer  or  soldier 
who  does  not  actually  do  all  duties  as  such,  and  no  farther  than  is  allowed 
by  a  resolution  of  Congress,  bearing  date  the  26th  day  of  December,  1775. 
Any  officer  offending  herein,  being  convicted  thereof  before  a  court-martial, 
shall  be  cashiered. 

Section  XL 

Article  1.  If  any  officer  shall  think  himself  to  be  wronged  by  his  col- 
onel, or  the  commanding  officer  of  the  regiment,  and  shall,  upon  due  appli- 
cation made  to  him,  be  refused  to  be  redressed,  he  may  complain  to  the 
general,  commanding  in  chief  the  forces  of  the  United  States,  in  order  to 
obtain  justice,  who  is  hereby  required  to  examine  into  the  said  complaint, 
and.  either  by  himself,  or  the  board  of  war,  to  make  report  to  Congress 
thereupon,  in  order  to  receive  further  directions.  ' 

'  Repealed  and  replaced  by  Resolution  of  Congress  of  April  14,  1777. 


AMERICAN  ARTICLES   OF  1776.  609 

Article  2.  If  any  inferior  officer  or  soldier  shall  tliink  himself  wronged 
by  his  captain,  or  other  officer  commanding  the  troop  or  company  to  which 
he  belongs,  he  is  to  complain  thereof  to  the  commanding  officer  of  the  regi- 
ment, who  is  hereby  required  to  summon  a  regimental  court-martial,  for  the 
doing  justice  to  the  complainant;  from  which  regimental  court-martial 
either  party  may,  if  lie  thinks  himself  still  aggrieved,  appeal  to  a  general 
court-martial;  but  if,  upon  a  second  hearing,  the  appeal  shall  appear  to  be 
vexatious  and  groundless,  the  person  so  appealing  shall  be  punish'^d  at  the 
discretion  of  the  said  general  court-martial. 

Section  XII. 

Article  1.  Whatsoever  commissioned  officer,  store-keeper,  or  commissary, 
shall  be  convicted  at  a  general  court-martial  of  having  sold  (without  a 
proper  order  for  that  purpose)  embezzled,  misapplied,  or  wilfully,  or  through 
neglect,  suffered  any  of  the  provisions,  forage,  arms,  clothing,  ammunition, 
or  other  military  stores  belonging  to  tlie  United  States,  to  be  spoiled  or 
damaged,  the  said  officer,  store-keeper,  or  commissary  so  offending,  shall, 
at  his  own  charge,  make  good  the  loss  or  damage,  shall  moreover  forfeit  all 
his  pay,  and  be  dismissed  from  the  service. 

Article  2.  Whatsoever  non-commissioned  officer  or  soldier  shall  be  con- 
victed, at  a  regimental  court-martial,  of  having  sold,  or  designedly,  or 
through  neglect,  wasted  the  ammunition  delivered  out  to  him  to  be  em- 
ployed in  the  service  of  the  United  States,  shall,  if  a  non-commissioned 
officer,  be  reduced  to  a  private  sentinel,  and  shall  besides  suffer  corporeal 
punishment  in  the  same  manner  as  a  private  sentinel  so  offending,  at  the 
discretion  of  a  regimental  court-martial. 

Article  3.  Every  non-commissioned  officer  or  soldier  who  shall  be  con- 
victed at  a  court-martial  of  having  sold,  lost  or  spoiled,  through  neglect,  his 
horse,  arms,  clothes  or  accoutrements  shall  undergo  such  weekly  stoppages 
(not  exceeding  the  half  of  his  pay)  as  a  court-martial  shall  judge  sufficient 
for  repairing  the  loss  or  damage;  and  shall  suffer  imprisonment,  or  such 
other  corporeal  punishment,  as  his  crime  shall  deserve. 

Article  4.  Every  officer  who  shall  be  convicted  at  a  court-martial  of 
having  embezzled  or  misapplied  any  money  with  which  he  may  have  been 
entrusted  for  the  payment  of  the  men  under  his  command,  or  for  inlisting 
men  into  the  service,  if  a  commissioned  officer,  shall  be  cashiered  and  com- 
pelled to  refund  the  money,  if  a  non-commissioned  officer,  shall  be  reduced 
to  serve  in  the  ranks  as  a  private  soldier,  be  put  under  stoppages  until  the 
money  be  made  good,  and  suffer  such  corporeal  punishment,  (not  extending 
to  life  or  limb)  as  the  court-martial  shall  think  fit. 

rticle  5.  Every  captain  of  a  troop  or  company  is  cliarged  with  the 
arms,  accoutrements,  ammunition,  clothing,  or  other  warlike  stores  belong- 


610  APPENDIX  C. 

ino-  to  the  troop  or  company  under  liis  command,  whicli  he  is  to  be  account- 
able for  to  his  colonel,  in  case  of  their  being  lost,  spoiled,  or  damaged,  not  by 
unavoidable  accidents,  or  on  actual  service. 

Sectiox  XIII. 

Article  1.  All  non-commissioned  ofhcers  and  soldiers,  who  shall  be  found 
one  mile  from  the  camp,  without  leave,  in  writing,  from  their  commanding 
officer,  shall  suffer  such  punishment  as  shall  be  inflicted  upon  them  by  the 
sentence  of  a  court-martial. 

Article  2.  ISio  officer  or  soldier  shall  lie  out  of  his  quarters,  garrison,  or 
camp,  without  leave  from  his  superior  officer,  upon  penalty  of  being  pun- 
ished according  to  the  nature  of  his  offence,  by  the  sentence  of  a  court- 
martial. 

Article  3.  Every  non-commissioned  officer  and  soldier  shall  retire  to  his 
quarters  or  tent  at  the  beating  of  the  retreat;  in  default  of  which  he  shall 
be  punished,  according  to  the  nature  of  his  offence,  by  the  commanding 
officer. 

Article  4.  No  officer,  non-commissioned  officer,  or  soldier,  shall  fail  of 
repairing,  at  the  time  fixed,  to  the  place  of  parade  or  exercise,  or  other  ren- 
dezvous appointed  by  his  commanding  officer,  if  not  prevented  by  sickness, 
or  some  other  evident  necessity ;  or  shall  go  from  the  said  place  of  rendezvous, 
or  from  his  guard,  without  leave  from  his  commanding  officer,  before  he  shall 
be  regularly  dismissed  or  relieved,  on  the  penalty  of  being  punished  accord- 
ing to  the  nature  of  his  offence,  by  the  sentence  of  a  court-martial. 

Article  5.  Whatever  commissioned  officer  shall  be  found  drunk  on  his 
guard,  party,  or  other  duty  under  arms,  shall  be  cashiered  for  it;  any  non- 
commissioned officer  or  soldier  so  offending,  shall  suffer  such  corporeal  pun- 
ishment as  shall  be  inflicted  by  the  sentence  of  a  court-martial. 

Article  6.  Whatever  sentinel  shall  be  found  sleeping  upon  his  post,  or 
shall  leave  it  before  he  shall  be  regularly  relieved,  shall  suffer  death,  or  such 
other  punishment  as  shall  be  inflicted  by  the  sentence  of  a  court-martial. 

Article  7.  Xo  soldier  belonging  to  any  regiment,  troop,  or  company, 
shall  hire  another  to  do  his  duty  for  him.  or  be  excused  from  duty,  but  in 
case  of  sickness,  disability,  or  leave  of  absence;  and  every  such  soldier  found 
guilty  of  hiring  his  duty,  as  also  the  party  so  hired  to  do  another's  duty, 
shall  be  punished  at  the  next  regimental  court-martial. 

Article  8.  And  every  non-commissioned  officer  conniving  at  such  hiring 
of  duty  as  aforesaid,  shall  be  reduced  for  it;  and  every  commissioned  officer, 
knowing  and  allowing  of  such  ill-practices  in  the  service,  shall  be  punished 
by  the  judgment  of  a  general  court-martial. 

Article  9.  Any  person,  belonging  to  the  forces  employed  in  the  service 
of  the  United  States,  who,  by  discharging  of  fire-arms,  drawing  of  swords. 


AMERICAN  ARTICLES  OF  1776.  611 

beating  of  drums,  or  by  any  other  meuiis  whutsoevor,  shall  occasion  false 
alarms  in  camp,  garrison,  or  quarters,  shall  suiler  death,  or  such  other  pun- 
ishment as  shall  be  ordered  by  the  sentence  of  a  general  court-martial. 

Article  10.  Any  otlicer  or  soldier  who  shall,  without  urgent  necessity,  or 
without  the  leave  of  his  superior  officer,  quit  his  platoon  or  division,  shall  be 
punished,  according  to  the  nature  of  his  offence,  by  the  sentence  of  a  court- 
martial. 

Article  11.  No  officer  or  soldier  shall  do  violence  to  any  person  who 
brings  provisions  or  other  necessaries  to  the  camp,  garrison,  or  quarters  of 
the  forces  of  the  United  States  employed  in  parts  out  of  said  states,  on  pain 
of  death,  or  such  other  punishment  as  a  court-martial  shall  direct. 

Article  12.  AMiatsoever  ofiHcer  or  soldier  shall  misbehave  himself  before 
the  enemy,  or  shamefully  abandon  any  post  committed  to  his  charge,  or  shall 
apeak  words  inducing  others  to  do  the  like,  shall  suffer  death. 

Article  13.  Whatsoever  officer  or  soldier  shall  misbehave  himself  before 
the  enemy,  and  run  away,  or  shamefully  abandon  any  fort,  post  or  guard, 
which  he  or  they  shall  be  commanded  to  defend,  or  speak  words  inducing 
others  to  do  the  like;  or  who,  after  victory,  shall  quit  his  commanding  officer. 
or  post,  to  plunder  and  pillage:  Every  such  offender,  being  duly  convicted 
thereof,  shall  be  reputed  a  disobeyer  of  military  orders;  and  shall  suffer 
death,  or  such  other  punishment,  as,  by  a  general  court-martial,  shall  be 
inflicted  on  him. 

Article  14.  Any  person,  belonging  to  the  forces  of  the  United  States, 
who  shall  cast  away  his  arms  and  ammunition,  shall  suffer  death,  or  such 
other  punishment  as  shall  be  ordered  by  the  sentence  of  a  general  court- 
martial. 

Article  15.  Any  person  belonging  to  the  forces  of  the  United  States,  who 
shall  make  known  the  watch-word  to  any  person  who  is  not  entitled  to  re- 
ceive it  according  to  the  rules  and  discipline  of  war,  or  shall  presume  to  give 
a  parole  or  watch-word  different  from  what  he  received,  shall  suffer  death, 
or  such  other  punishment  as  shall  be  ordered  by  the  sentence  of  a  general 
court-martial. 

Article  16.  All  officers  and  soldiers  are  to  behave  themselves  orderly  in 
quarters,  and  on  their  march ;  and  whosoever  shall  commit  any  waste  or 
spoil,  either  in  walks  of  trees,  parks,  warrens,  fish-ponds,  houses  or  gardens, 
corn-fields,  enclosures  or  meadows,  or  shall  maliciously  destroy  any  property 
whatsoever  belonging  to  the  good  people  of  the  United  States,  unless  by 
order  of  the  then  commander  in  chief  of  the  forces  of  the  said  states,  to 
annoy  rebels  or  other  enemies  in  arms  against  said  states,  he  or  they  that 
shall  be  found  guilty  of  offending  herein,  shall  (besides  such  penalties  as  they 
are  liable  to  by  law)  be  i)unished  according  to  tlie  nature  and  degree  of  the 
offence,  by  the  judgment  of  a  regimental  or  general  cDuit-niartial. 


612  APPENDIX   C. 

Article  17.  "Whosoever,  belonging  to  the  forces  of  the  United  States, 
emploved  in  foreign  parts,  shall  force  a  safe-guard,  shall  suffer  death. 

Article  18.  Whosoever  shall  relieve  the  enemy  with  money,  victuals,  or 
ammunition,  or  shall  knowingly  harbor  or  protect  an  enemy,  shall  suffer 
death,  or  such  other  punishment  as  by  a  court-martial  shall  be  inflicted. 

Article  19.  Whosoever  shall  be  convicted  of  holding  correspondence 
with,  or  giving  intelligence  to  the  enemy,  either  directly  or  indirectly,  shall 
suffer  death,  or  such  other  punishment  as  by  a  court-martial  shall  be 
inflicted. 

Article  20.  All  public  stores  taken  in  the  enemy's  camp,  towns,  forts,  or 
magazines,  whether  of  artillery,  ammunition,  clothing,  forage,  or  provisions, 
shall  be  secured  for  the  service  of  the  United  States,  for  the  neglect  of  which 
the  commanders  in  chief  are  to  be  answerable. 

Article  21.  If  any  officer  or  soldier  shall  leave  his  post  or  colors  to  go  in 
search  of  plunder,  he  shall  upon  being  convicted  thereof  before  a  general 
court-martial,  suffer  death,  or  such  other  punishment  as  by  a  court-martial 
shall  be  inflicted. 

Article  22.  If  any  commander  of  any  garrison,  fortress,  or  post,  shall  be 
compelled  by  the  officers  or  soldiers  under  his  command,  to  give  up  to  the 
enemy,  or  to  abandon  it,  the  commissioned  officers,  non-commissioned  officers, 
or  soldiers,  who  shall  be  convicted  of  having  so  offended,  shall  suffer  death, 
or  such  other  punishment  as  shall  be  inflicted  upon  them  by  the  sentence  of 
a  court-martial. 

Article  23.  All  suttlers  and  retainers  to  a  camp,  and  all  persons  whatso- 
ever serving  with  the  armies  of  the  United  States  in  the  field,  though  no 
inlisted  soldier,  are  to  be  subject  to  orders,  according  to  the  rules  and  disci- 
pline of  war. 

Article  24.  Officers  having  brevets,  or  commissions  of  a  prior  date  to 
those  of  the  regiment  in  which  they  now  serve,  may  take  place  in  courts- 
martial  and  on  detachments,  when  composed  of  different  corps,  according  to 
the  ranks  given  them  in  their  brevets  or  dates  of  their  former  commissions; 
but  in  the  regiment,  troop,  or  company  to  which  such  brevet  officers  and 
those  who  have  commissions  of  a  prior  date  do  belong,  they  shall  do  duty 
and  take  rank  both  on  court-martial  and  on  detachments  which  shall  be 
composed  only  of  their  own  corps,  according  to  the  commissions  by  which 
they  are  mustered  in  the  said  corps. 

Article  25.  If  upon  marches,  guards,  or  in  quarters,  different  corps  shall 
happen  to  join  or  do  duty  together,  the  eldest  officer  by  commission  there, 
on  duty,  or  in  quarters,  shall  command  the  whole,  and  give  out  orders  for 
what  is  needful  to  the  service;  regard  being  always  had  to  the  several  ranks 
of  those  corps,  and  the  posts  they  usually  occupy. 

Article  26.  And  in  like  manner  also,  if  any  regiments,  troops,  or  detach- 
ments of  horse  or  foot  shall  happen  to  march  with,  or  be   encamped   or 


AMERICAN  ARTICLES  OF  1776.  613 

quartered  with  any  bodies  or  detachments  of  other  troops  in  the  service  of 
the  United  States,  tlie  eldest  otftcer,  without  respect  to  corps,  shall  lake 
upon  him  the  command  of  the  whole,  and  give  the  necessary  orders  to  the 
service. 

Section  XIV.' 

Article  1.  A  general  court-martial  in  the  United  States  shall  not  consist 
of  less  than  thirteen  commissioned  officers,  and  the  president,  of  such  court- 
martial  shall  not  be  the  commander-in-chief  or  commandant  of  the  garrison 
where  the  offender  sliall  be  tried,  nor  be  under  the  degree  of  a  field  officer. 

Article  2.  The  members  both  of  general  and  regimental  courts-martial 
sliall,  when  belonging  to  different  corps,  take  the  same  rank  which  they 
hold  in  the  army;  but  when  courts-martial  shall  be  composed  of  officers  of 
one  corps,  they  shall  take  their  ranks  according  to  the  dates  of  the  commis- 
sions by  which  they  are  mustered  in  the  said  corps. 

Article  3.  The  Judge-advocate  general,  or  some  person  deputed  by  him, 
shall  prosecute  in  the  name  of  the  United  States  of  America;  and  in  trials 
of  offenders  by  general  courts-martial,  administer  to  each  member  the  fol- 
lowing oaths  : 

'•  You  shall  well  and  truly  try  and  determine,  according  to  your  evi- 
dence, the  matter  now  before  you,  between  the  United  States  of  America, 
and  the  prisoners  to  be  tried.     So  help  you  God. 

•'You  A.  B.  do  swear,  that  you  will  duly  administer  justice  according  to 
the  rules  and  articles  for  the  better  government  of  the  forces  of  the  United 
States  of  America,  without  partiality,  favor,  or  affection;  and  if  any  doubt 
shall  arise,  which  is  not  explained  by  the  said  articles,  according  to  your 
conscience,  the  best  of  your  understanding,  and  the  custom  of  war  in  the 
like  cases.  And  you  do  further  swear,  that  you  will  not  divulge  the  sentence 
of  the  court,  until  it  shall  be  approved  of  by  the  general,  or  commander  in 
chief;  neither  will  you,  upon  any  account,  at  any  time  whatsoever,  disclose 
or  discover  the  vote  or  opinion  of  any  particitlar  member  of  the  court-mar- 
tial, unless  required  to  give  evidence  thereof  as  a  witness  by  a  court  of 
justice,  in  a  due  course  of  law.     So  help  you  God." 

And  as  soon  as  the  said  oath  shall  have  been  administered  to  the  respect- 
ive members,  the  president  of  the  court  shall  administer  to  the  judge  advo- 
cate, or  person  officiating  as  such,  an  oath  in  the  following  words  : 

"You  A.  B.  do  swear,  that  you  will  not,  upon  any  account,  at  anrtime 
whatsoever,  disclose  or  discover  the  vote  or  opinion  of  any  particular  mem- 
ber of  the  court-martial,  unless  required  to  give  evidence  thereof,  as  a  wit- 
ness, by  a  court  of  justice,  in  a  due  course  of  law.     So  help  you  God." 

'  Replaced  by  a  new  sectioa  by  Resolution  of  Congress  of  May  31,  1786.     See  page 
619,  post. 


014  APPENDIX  C. 

Article  4.  All  the  members  of  a  court-martial  are  to  behave  with  calm- 
ness ami  decency :  and  in  the  giving  of  their  votes,  are  to  begin  with  the 
voiiugest  in  commission. 

Article  5,  All  persons  who  give  evidence  before  a  general  court-martial, 
are  to  be  examined  .upon  oath;  and  no  sentence  of  death  shall  be  given 
against  any  offender  by  any  general  court-martial,  unless  two-thirds  of  tlie 
officers  present  shall  concur  therein. 

Article  6.  All  persons  called  to  give  evidence,  in  any  cause,  before  a 
court-martial,  who  shall  refuse  to  give  evidence,  shall  be  punished  for  sucli 
refusal,  at  the  discretion  of  sucli  court-martial  :  The  oath  to  be  adminis- 
tered in  the  following  form,  viz  : 

"You  swear  the  evidence  you  shall  give  in  the  cause  now  in  hearing, 
shall  be  the  truth,  the  whole  truth,  and  nothing  but  the  truth.  So  help 
you  God." 

Article  7.  No  field  officer  shall  be  tried  by  any  person  under  the  degree 
of  a  captain ;  nor  shall  any  proceedings  or  trials  be  carried  on  excepting  be- 
tween the  hours  of  eight  in  the  morning  and  of  three  in  the  afternoon,  ex- 
cept in  cases  which  require  an  immediate  example. 

Article  8.  Xo  sentence  of  a  general  court-martial  shall  be  put  iu  execu- 
tion, till  after  a  report  shall  be  made  of  the  whole  proceedings  to  Congress, 
or  to  the  general  or  commander  in  chief  of  the  forces  of  the  United  States, 
and  their  or  his  directions  be  signified  thereupon.' 

Article  9.  For  the  more  equitable  decision  of  disputes  which  may.  arise 
between  officers  and  soldiers  belonging  to  different  corps,  it  is  liereby 
directed,  that  the  courts-martial  shall  be  equally  composed  of  officers  be- 
longing to  the  corps  in  which  the  parties  in  question  do  then  serve  ;  and 
that  the  presidents  shall  be  taken  by  turns,  beginning  with  that  corps  which 
shall  bo  e;ldest  in  rank. 

Article  10.  The  commissioned  officers  of  every  regiment  may,  by  the 
appointment  of  their  colonel  or  commanding  officer,  hold  regimental  courts- 
martial  for  the  enquiring  into  such  disputes,  or  criminal  matters,  as  may 
come  before  them,  and  for  the  inflicting  corporeal  punishments  for  small 
offences,  and  shall  give  judgment  by  the  majority  of  voices;  but  no  sentence 
shall  be  executed  till  the  commanding  officer  (not  being  a  member  of  the 
court-martial)  or  the  commandant  of  the  garrison,  shall  have  confirmed  the 

same. 

Article  11.  No  regimental  court-martial  shall  consist  of  less  than  five 
officers,  excepting  in  cases  where  that  number  caTinot  conveniently  be 
assembled,  when  three  may  be  sufficient;  who  are  likewise  to  determine  upon 
the  sentence  by  the  majority  of  voices;  whicli  sentence  is  to  be  confirmed  by 
the  commanding  officer  of  the  regiment,  not  being  a  member  of  the  court- 
martial. 

'  Repealed  and  replaced  by  Resolution  of  Congress  of  April  14,  1777. 


AMERirAN  ARTICLES   OF  1770.  <"'15 

Article  12.  Every  ofticor  commaudiug  in  uny  of  the  forts,  barracks,  or 
elsewhere,  wliere  the  corjis  under  liis  command  consists  of  detachments  from 
different  regiments,  or  of  independent  companies,  may  assemble  courts- 
martial  for  the  trial  of  oifenders  in  the  same  manner  as  if  they  were 
regimental,  whose  sentence  is  not  to  be  executed  uTitil  it  shall  be  confirmed 
by  the  said  commanding  officer. 

Article  13.  No  commissioned  officer  shall  be  cashiered  or  dismissed  from 
the  service,  excepting  by  an  order  from  the  Congress,  or  by  the  sentence  of 
a  general  court-martial;  but  non-commissioned  officers  maybe  discharged 
as  private  soldiers,  and,  by  the  order  of  the  colonel  of  the  regiment,  or  by 
the  sentence  of  a  regimental  court-martial,  be  reduced  to  private  sentinels. 

Article  14.  No  person  whatever  shall  use  menacing  words,  signs,  or 
gestures,  in  the  presence  of  a  court-martial  then  sitting,  or  shall  cause  any 
disortler  or  riot,  so  as  to  disturb  their  proceedings,  on  the  j^enalty  of  being 
punished  at  tlie  discretion  of  the  said  court-martial. 

Article  15.  'Vo  the  end  that  offenders  may  be  brought  to  justice,  it  is 
hereby  directed,  that  whenever  any  officer  or  soldier  shall  commit  a  crime 
deserving  punishment,  he  shall,  by  his  commanding  officer,  if  an  officer,  be 
put  in  arrest;  if  a  non-commissioned  officer  or  soldier,  be  imprisoned  till  he 
sliall  be  either  tried  by  a  court-martial,  or  shall  be  lawfully  discharged  by  a 
proper  authority. 

Article  16.  No  officer  or  soldier  wlio  shall  be  put  in  arrest  or  imprison- 
ment, shall  continue  in  his  confinement  more  than  eight  days,  or  till  such 
time  as  a  court-martial  can  be  conveniently  assembled. 

Article  17.  No  officer  commanding  a  guard,  or  provost-martial,  shall 
refuse  to  receive  or  keep  any  prisoner  committed  to  his  charge,  by  any 
officer  belonging  to  the  forces  of  the  United  States;  whicli  officer  shall,  at 
the  same  time,  deliver  an  account  in  writing,  signed  by  himself,  of  the 
crime  with  which  the  said  prisoner  is  charged. 

Article  18.  No  officer  commanding  a  guard,  or  provost-martial,  shall 
presume  to  release  any  prisoner  committed  to  his  charge  without  proper 
authority  for  so  doing  ;  nor  shall  he  suffer  any  prisoner  to  escajje,  on  the 
penalty  of  being  punislied  for  it  by  a  sentence  of  a  court-martial. 

Article  19.  Every  officer  or  provost-martial  to  whose  charge  prisoners 
shall  be  committed,  is  hereby  required  within  twenty-four  hours  after  such 
commitment,  or  as  soon  as  he  shall  be  relieved  from  his  guard,  to  give  in 
writing  to  the  colonel  of  the  regiment  to  whom  the  prisoner  belongs  (where 
the  prisoner  is  confined  upon  the  guard  belonging  to  the  said  regiment,  and 
that  his  offence  only  relates  to  the  neglect  of  duty  in  his  own  corps)  or  to 
the  commander  in  chief,  their  names,  their  crimes,  and  the  names  of  the 
officers  who  committed  them,  on  the  penalty  of  his  being  punished  for  his 
disobedience  or  neglect,  at  the  discretion  of  a  court-martial. 

Article  20.  And  if  anv  officer  under  arrest,  shall  leave  his  confinement 


^1(5  APPENDIX   a 

before  he  is  set  at  liberty  by  the  officer  who  confined  him,  or  by  a  superior 
power,  he  shall  be  cashiered  for  it. 

Article  21.  Whatsoever  commissioned  officer  shall  be  convicted,  before 
a  treneral  court-martial,  of  behaving  in  a  scandalous,  infamous  manner,  such 
as"  is  unbecoming  the  character  of  an  officer  and  a  gentleman,  shall  be 
discharged  from  the  service. 

Article  22.  lu  all  cases  where  a  commissioned  officer  is  cashiered  for 
cowardice,  or  fraud,  it  shall  be  added  in  the  punishment,  that  the  crime, 
name,  place  of  abode,  and  punishment  of  the  delinquent,  be  published  in 
the  newspapers,  and  in  and  about  the  camp,  and  of  that  particular  state 
from  which  the  offender  came,  or  usually  resides  :  After  which,  it  shall  be 
deemed  scandalous  for  any  officer  to  associate  with  him. 

Section  XV. 

Article  1.  When  any  commissioned  officer  shall  happen  to  die,  or  be 
tilled  in  the  service  of  the  United  States,  the  major  of  the  regiment,  or  the 
officer  doing  the  major's  duty  in  his  absence,  shall  immediately  secure  all  his 
effects,  or  equipage,  then  in  camp  or  quarters;  and  shall,  before  the  next 
regimental  court-martial,  make  an  inventory  thereof,  and  forthwith  transmit 
the  same  to  the  office  of  the  board  of  war,  to  the  end,  that  his  executors 
mav,  after  payment  of  his  debts  in  quarters  and  interment,  receive  the  over- 
plus, if  any  be.  to  his  or  their  use. 

Article  2.  When  any  non-commissioned  officer  or  soldier  shall  happen  to 
die.  or  to  be  killed  in  the  service  of  the  United  States,  the  then  commanding 
officer  of  the  troop  or  company,  shall,  in  the  presence  of  two  other  com- 
missioned officers,  take  an  account  of  whatever  effects  he  dies  possessed  of, 
above  his  regimental  clothing,  arms,  and  accoutrements,  and  transmit  the 
same  to  the  office  of  the  board  of  war;  which  said  effects  are  to  be  accounted 
for  and  paid  to  the  representative  of  such  deceased  non-commissioned  officer 
or  soldier.  And  in  case  any  of  the  officers,  so  authorized  to  take  care  of  the 
effects  of  dead  officers  and  soldiers  should,  before  they  shall  have  accounted 
to  their  representatives  for  the  same,  have  occasion  to  leave  the  regiment, 
by  preferment  or  otherwise,  they  shall,  before  they  be  permitted  to  quit  the 
same,  deposite  in  the  hands  of  the  commanding  officer  or  of  tlie  agent  of  the 
regiment,  all  the  effects  of  such  deceased  non-commissioned  officers  and 
sofdiers,  in  order  that  the  same  may  be  secured  for,  and  paid  to  their 
respective  representatives. 

Sectiox  XVI. 

Article  1.   All    officers,    conductors,    gunners,    matrosses,     drivers,    or 
any  other  persons  whatsoever,   receiving  pay  or  hire  in  the  service  of  the 


AMERICAS  AJiTICLBS  OF  177G.  617 

artillery  of  the  United  States,  shall  be  governed  by  the  aforesaid  rules  and 
articles,  and  shall  be  subject  to  be  tried  by  courts-martial,  in  like  manner 
with  the  otticers  and  soldiers  or  the  other  troops  in  the  service  of  the  United 
States. 

Article  2.  For  differences  arising  amongst  themselves,  or  in  rnattera 
relating  solely  to  their  own  corps,  the  courts-martial  may  be  composed  of 
their  own  officers;  but  where  a  sufficient  number  of  such  officers  cannot  be 
assembled,  or  in  nuitters  wherein  other  corps  are  interested,  tlie  officers  of 
artillery  shall  sit  in  courts-martial  with  the  officers  of  the  otlier  corps, 
taking  their  rank  according  to  the  dates  of  their  respective  commissions, 
and  no  otherwise. 

Section  XVII. 

Article  1.  The  officers  and  soldiers  of  any  troops,  whether  minute-rnen, 
militia,  or  others,  being  mustered  and  in  continental  pay,  shall,  at  all  times, 
and  in  all  places,  when  joined,  or  acting  in  conjunction  with  the  regular 
forces  of  the  United  States,  be  governed  by  these  rules  or  articles  of  war, 
and  shall  be  subject  to  be  tried  by  courts-martial  in  like  manner  with  the 
officers  and  soldiers  in  the  regular  forces,  save  oidy  that  such  courts-martial 
shall  be  composed  entirely  of  militia  officers  of  the  same  provincial  corps 
with  the  offender. 

That  such  militia  and  minute-men  as  are  now  in  service,  and  have,  by 
particular  contract  with  the  respective  States,  engaged  to  be  governed  by 
particular  regulations  while  in  continental  service,  shall  not  be  subject  to 
the  above  articles  of  war. 

Article  2.  For  the  future,  all  general  officers  and  colonels,  serving  by 
commission  from  tlie  authority  of  any  particular  State,  shall,  on  all  detach- 
ments, courts-martial,  or  other  duty  wherein  they  may  be  emploved  in  con- 
junction with  the  regular  forces  of  the  United  States,  take  rank  next  after 
all  generals  and  colonels  serving  by  commissions  from  Congress,  though  the 
commissions  of  such  particular  generals  and  colonels  should  be  of  elder  date; 
and  in  like  manner  lieutenant-colonels,  majors,  captains,  and  other  inferior 
officers,  serving  by  commission  from  any  particular  State,  shall,  on  all  detach- 
ments, courts-martial  or  other  duty,  wherein  they  may  be  employed  in  con- 
junction with  the  regular  forces  of  the  United  States,  have  rank  next  after 
»11  officers  of  the  like  rank  serving  by  commissions  from  Congress,  though 
the  commissions  of  such  lieutenant-colonels,  majors,  captains,  and  other 
inferior  officers  should  be  of  elder  date  to  those  of  the  like  rank  from 
Congress. 

Section  XVIII. 
Article  1.  The  aforegoing  articles  are  to  be  read  and  published  once  in 
every  two  mouths,  at  the   head   of   every   regiment,    troop   or  company, 


618  APPENDIX  C. 

mustered,  or  to  be  mustered  in  the  service  of  the  United  States;  and  are  to 
be  duly  observed  and  exactly  obeyed  by  all  otiicers  and  soldiers  who  are  or 
shall  be  in  the  said  service. 

Article  2.  The  general,  or  commander  in  chief  for  the  time  being,  shall 
have  full  power  of  pardoning  or  mitigating  any  of  the  punishments  ordered 
to  be  inflicted,  for  any  of  the  offences  mentioned  in  the  foregoing  articles; 
and  every  offender  convicted  as  aforesaid,  by  any  regimental  court-martial, 
may  be  pardoned,  or  liave  his  punishment  mitigated  by  the  colonel,  or 
officer  commanding  the  regiment.' 

Article  3.  No  person  shall  be  sentenced  to  suffer  death,  except  in  the 
cases  expressly  mentioned  in  the  foregoing  articles ;  nor  shall  more  than  one 
hundred  lashes  be  inflicted  on  any  offender,  at  the  discretion  of  a  court- 
martial. 

That  every  judge-advocate,  or  person  officiating  as  such,  at  any  general 
court-martial,  do,  and  he  is  hereby  required  to  transmit,  with  as  much  ex- 
pedition as  the  opportunity  of  time  and  distance  of  j^lace  can  admit,  the 
original  proceedings  and  sentence  of  such  court-martial  to  the  secretary  at 
war,  which  said  original  proceedings  and  sentence  shall  be  carefully  kept 
and  preserved  in  the  office  of  said  secretary,  to  the  end  that  persons  entitled 
thereto  may  be  enabled,  upon  application  to  the  said  office,  to  obtain  copies 
thereof. 

That  the  party  tried  by  any  general  court-martial,  shall  be  entitled  to  a 
copy  of  the  sentence  and  proceedings  of  such  court-martial,  upon  demand 
thereof  made  by  liimself,  or  by  any  other  person  or  persons,  on  his' behalf, 
whether  such  sentence  be  approved  or  not. 

Article  4.  The  field  officers  of  each  and  every  regiment  are  to  appoint 
some  suitable  person  belonging  to  such  regiment,  to  receive  all  such  fines  as 
may  arise  within  the  same,  for  any  breach  of  any  of  the  foregoing  articles, 
and  shall  direct  the  same  to  be  carefully  and  properly  applied  to  the  relief 
of  such  sick,  wounded  or  necessitous  soldiers  as  belong  to  such  regiments;, 
and  such  person  shall  account  with  such  officer  for  all  fines  received  and  the 
aj^plication  thereof. 

Article  5.  All  crimes  not  capital,  and  all  disorders  and  neglects  which 
officers  and  soldiers  may  be  guilty  of,  to  the  prejudice  of  good  order  and 
military  discipline,  though  not  mentioned  in  the  above  articles  of  war,  are 
to  be  taken  cognizance  of  by  a  general  or  regimental  court-martial,  ac- 
cording to  the  nature  and  degree  of  the  offence,  and  be  punished  at  their 
discretion. 


>  Repealed  and  replaced  by  Resolution  of  Cougress  of  April  14,  1777. 


APPENDIX  D. 
AMERICAN  ABTICLES  OF  MA  Y  31,  1786.' 

Whereas  crimes  may  be  committed  by  officers  and  soldiers  serving  with 
small  detachments  of  the  forces  of  the  United  States,  and  where  there  may 
not  be  a  sufficient  number  of  officers  to  hold  a  general  court-martial,  accord- 
ing to  the  rules  and  articles  of  war,  in  consequence  of  which  criminals  may 
escape  punishment,  to  the  great  injuiy  of  the  discipline  of  the  troops  and 
the  public  service; 

Reatilved.  That  tlie  lith  Section  of  the  Kules  and  Articles  for  the  better 
government  of  the  troops  of  the  United  States,  and  such  other  Articles  as 
relate  to  the  holding  of  courts-martial  and  the  confirmation  of  the  sentences 
thereof,  be  and  they  are  hereby  repealed ; 

Besolved,  That  the  following  Eules  and  Articles  for  the  administration 
of  justice,  and  the  holding  of  courts-martial,  and  the  confirmation  of  the  sen- 
tences thereof,  be  duly  observed  and  exactly  obeyed  by  all  officers  and  soldiers 
who  are  or  shall  be  in  the  armies  of  the  United  States. 

Admixistration  of  Justice. 

Article  1.  General  courts-martial  may  consist  of  any  number  of  commis- 
sioned officers  from  5  to  13  inclusively;  but  they  shall  not  consist  of  less 
than  13,  wiiere  that  number  can  be  convened  without  nuinifest  injury  to  the 
service. 

Article  2.  (ieneral  courts-martial  shall  be  ordered,  as  often  as  the  cases 
may  require,  by  the  general  or  officer  commanding  the  troops.  But  no  sen- 
tence of  a  court-martial  sliall  be  carried  into  execution  until  after  the  whole 
proceedings  shall  have  been  laid  before  the  said  general  or  officer  command- 
ifig  the  troops  for  the  time  being;  neither  sliall  any  sentence  of  a  general 
court-martial  in  time  of  peace,  extending  to  the  loss  of  life,  the  dismission 
of  a  commissioned  officer,  or  wliicli  shall  either  in  time  of  peace  or  war 
respect  a  general  officer,  be  carried  into  execution,  until  after  the  whole  pro- 
ceedings shall  have  been  transmitted   to  the  secretary  at  war,  to  be  laid 


'  Replaces  Section  14  of  the  Articles  of  1776. 

619 


620  APPEADJX   D. 

before  Congress  for  their  contirnuition,  or  (lisup{)roval,  and  their  orders  on  the 
case.  All  other  sentences  may  be  confirmed  and  executed  by  the  officer 
ordering  the  court  to  assemble,  or  the  commanding  officer  for  the  time  being, 
as  the  case  may  be. 

Article  3.  Every  officer  commanding  a  regiment  or  corps,  may  appoint  of 
his  own  regiment  or  corps,  courts-martial,  to  consist  of  3  commissioned  offi- 
cers, for  the  trial  of  offences  not  capital,  and  the  inflicting  corporeal  punish- 
ments, and  decide  upon  their  sentences.  For  the  same  purpose,  all  officers 
commanding  any  of  the  garrisons,  forts,  barracks,  or  other  place,  where  the 
troops  consist  of  different  corps,  may  assemble  courts-martial,  to  consist  of 
3  commissioned  officers,  and  decide  upon  their  sentences. 

Article  4.  No  garrison  or  regimental  court-martial  shall  have  the  power 
to  try  capital  cases,  or  commissioned  officers;  neither  shall  they  inflict  a  fine 
exceeding  one  month's  pay,  nor  imprison,  nor  put  to  hard  labor,  any  non- 
commissioned officer  or  soldier,  for  a  longer  time  than  one  month. 

Article  5.  The  members  of  all  courts-martial  shall,  when  belonging  to 
different  corps,  take  the  same  rank  in  court  which  they  hold  in  the  army. 
But  when  courts-martial  shall  be  composed  of  officers  of  one  corps,  they  shall 
take  rank  according  to  the  commissions  by  which  they  are  mustered  in  the 
said  corps. 

Article  6.  The  judge  advocate,  or  some  person  deputed  by  him,  or  by  the 
general  or  officer  commanding  the  army,  detachment  or  garrison,  shall 
prosecute  in  the  name  of  the  United  States  of  America;  but  shall  so  far 
consider  himself  as  counsel  for  the  prisoner,  after  the  said  prisoner  shall  have 
made  his  plea,  as  to  object  to  any  leading  question,  to  any  of  the  witnesses, 
or  any  question  to  the  prisoner,  the  answer  to  which  might  tend  to  crim- 
inate himself;  and  administer  to  each  member  the  following  oaths,  which 
shall  also  be  taken  by  all  members  of  regimental  and  garrison  courts-mar- 
tial : 

"  You  shall  well  and  truly  try  and  determine,  according  to  evidence,  the 
matter  now  before  you,  between  the  United  States  of  America,  and  the  pris- 
oner to  be  tried.     So  help  you  God." 

"  You  A.  B.  do  swear,  that  you  will  duly  administer  justice,  according  to 
the  rules  and  articles  for  the  better  government  of  the  forces  of  the  United 
States  of  America,  without  partiality,  favor  or  affection;  and  if  any  doubt 
shall  arise,  which  is  not  explained  by  said  articles,  according  to  your  con- 
science, the  best  of  your  understanding,  and  the  custom  of  war  in  the  like 
cases.  And  you  do  further  swear,  that  you  will  not  divulge  the  sentence  of 
the  court,  until  it  shall  be  published  by  the  commanding  officer.  Neither 
will  you,  upon  any  account,  at  any  time  whatsoever,  disclose  or  discover 
the  vote  or  opinion  of  any  particular  member  of  the  court-martial,  unless 
required  to  give  evidence  thereof,  as  a  witness,  by  a  court  of  justice,  in  a 
due  course  of  law.     So  help  you  God." 


AMERICAN  ARTICLES  OF  MAT  31,  1786.  621 

And  as  soon  as  the  said  oaths  shall  have  been  administered  to  the 
respective  members,  the  president  of  the  court  shall  administer  to  the 
judge  advocate,    or    person  otticiating  as    such,   an   oath  in  the  following 

words  : 

''  You  A.  B.  do  swear,  that  you  will  not,  upon  any  account,  at  any  time 
whatsoever,  disclose  or  discover  the  vote  or  opinion  of  any  particular  mem- 
ber of  the  court-martial,  unless  required  to  give  evidence  thereof  as  a  wit- 
ness,  by  a  court  of  justice,  in  a  due  course  of  law.     So  help  you  God." 

Article  7.  All  the  members  of  a  court-martial  are  to  behave  with  decency 
and  calmness;  and  in  giving  their  votes,  are  to  begin  with  the  youngest  in 
commission. 

Article  8.  All  persons  who  give  evidence  before  a  court-martial,  are  to 
be  examined  on  oath,  or  affirmation,  as  the  case  may  be,  and  no  sentence  of 
death  shall  be  given  against  any  offender  by  any  general  court-martial,  unless 
two-thirds  of  the  members  of  the  court  shall  concur  therein. 

Article  9.  Whenever  an  oath  or  affirmation  shall  be  administered  by  a 
court-martial,  the  oath  or  affirmation  shall  be  in  the  following  form  : 

"  You  swear  (or  affirm,  as  the  case  may  be)  the  evidence  you  shall  give 
in  the  case  now  in  hearing,  shall  be  the  truth,  the  whole  truth,  and  nothing 
but  the  truth.      So  help  you  God." 

Article  10.  On  the  trials  of  cases  not  capital,  before  courts-martial,  the 
depositions  of  witnesses,  not  in  the  line  or  staff  of  the  army,  may  be  taken 
before  some  justice  of  the  peace,  and  read  in  evidence,  provided  the  prose- 
cutor and  person  accused  are  present  at  the  taking  the  same. 

Article  11.  No  officer  shall  be  tried  but  by  a  general  court-martial,  nor 
by  officers  of  an  inferior  rank  if  it  can  be  avoided.  Nor  shall  any  proceed- 
ings or  trials  be  carried  on,  excepting  between  the  hours  of  8  in  the  morn- 
ing and  3  in  the  afternoon,  except  in  cases  which,  in  the  opinion  of  the 
officer  appointing  the  court,  require  immediate  example. 

Article  12.  No  person  whatsoever  shall  use  menacing  words,  signs  or 
gestures  in  the  presence  of  a  court-martial,  or  shall  cause  any  disorder  or 
riot  to  disturb  their  proceedings,  on  the  penalty  of  being  punished  at  the 
discretion  of  the  said  court-martial. 

Article  13.  No  commissioned  officer  shall  be  cashiered,  or  dismissed 
from  the  service,  excepting  by  order  of  Congress,  or  by  the  sentence  of  a 
general  court-martial ;  and  no  non-commissioned  officer  or  soldier  shall  be 
discharged  the  service,  but  by  the  order  of  Congress,  the  secretary  at  war. 
the  commander-in-chief,  or  commanding  officer  of  a  department,  or  by  the 
sentence  of  a  general  court-martial. 

Article  14.  Wlienever  any  officer  shall  be  charged  with  a  crime,  he  shall 
be  arrested  and  confined  to  his  barracks,  quarters  or  tent,  and  deprived  of 
his  sword  by  his  commanding  officer.     And  any  officer  who  shall  leave  his 


622  APPENDIX  D. 

confinement  before  he  shall  be  set  at  liberty  by  his  commanding  ofificer,  or 
by  a  superior  power,  shall  be  cashiered  for  it. 

Article  15.  Non-commissioned  officers  and  soldiers,  who  shall  be  charged 
with  crimes,  shall  be  imprisoned  until  they  shall  be  tried  by  a  court-martial, 
or  released  by  proper  authority. 

Article  16.  No  officer  or  soldier,  who  shall  be  put  in  arrest  or  imprison- 
ment, shall  continue  in  his  confinement  more  than  8  days,  or  until  such 
time  as  a  court-martial  can  be  assembled. 

Article  17.  No  officer  commanding  a  guard,  or  provost-marshal,  shall 
refuse  to  receive  or  keep  any  prisoner  committed  to  his  charge  by  any  officer 
belonging  to  the  forces  of  the  United  States,  provided  the  officer  committing 
shall,  at  the  same  time,  deliver  an  account  in  writing  signed  by  himself,  of 
the  crime  with  which  the  said  prisoner  is  charged. 

Article  18.  No  officer  commanding  a  guard,  or  provost-marshal,  shall 
presume  to  release  any  person  committed  to  his  charge,  without  proper 
authority  for  so  doing;  nor  shall  he  suffer  any  person  to  escape  on  penalty 
of  being  punished  for  it  by  the  sentence  of  a  court-martial. 

Article  19.  Every  officer,  or  provost-marshal,  to  whose  charge  prisoners 
shall  be  committed,  shall,  within  24  hours  after  such  commitment,  or  as 
soon  as  he  shall  be  relieved  from  his  guard,  make  report  in  writing,  to  the 
commander-in-chief,  or  commanding  officer,  of  their  names,  their  crimes 
and  the  names  of  the  officers  who  committed  them,  on  the  penalty  of  his 
being  punished  for  disobedience  or  neglect  at  the  discretion  of  a  court-mar- 
tial. 

Article  20.  Whatever  commissioned  officer  shall  be  convicted  before  a 
general  court-martial,  of  behaving  in  a  scandalous  and  infamous  manner, 
such  as  is  unbecoming  an  officer  and  a  gentleman,  shall  be  dismissed  the 
service. 

Article  21.  In  cases  where  a  court-martial  may  think  it  proper  to  sen- 
tence a  commissioned  officer  to  be  suspended  from  command,  they  shall 
have  power  also  to  suspend  his  pay  and  emoluments  for  the  same  time, 
according  to  the  nature  and  heinousness  of  the  offence. 

Article  22.  In  all  cases  where  a  commissioned  officer  is  cashiered  for 
cowardice  or  fraud,  it  shall  be  added  in  the  sentence,  that  the  crime,  name, 
place  of  abode,  and  punishment  of  the  delinquent  be  published  in  the  news- 
papers, in  and  about  camp,  and  of  the  particular  State  from  which  the 
offender  came,  or  usually  resides;  after  wliich  it  shall  be  deemed  scandalous 
for  any  officer  to  associate  with  him. 

Article  23.  The  commanding  officer  of  any  post  or  detachment,  in 
whicli  there  shall  not  be  a  number  of  officers  adequate  to  form  a  general 
court-martial,  shall,  in  cases  whicli  require  the  cognizance  of  such  a  court, 
report  to  the  commanding  officer  of  the  department,  who  shall  order  a  court 
to  be  assembled  at  the  nearest  post  or  detachment,  and  the  party  accused, 


AMERICAN  ARTICLES   OF  MA  Y  Si,   1786.  623 

with  the  necessary  witnesses,  to  be  transported  to  the  place  where  the  said 
court  .>li;ill  lie  assembled . 

Article  24.  Mo  person  shall  be  sentenced  to  sutler  death,  except  in  the 
cases  expressly  mentioned  in  the  foregoing  articles;  nor  shall  more  than  100 
lashes  be  inflicted  on  any  offender  at  the  discretion  of  a  court-martial. 

Every  judge  advocate,  or  [leisoii  officiating  Jis  such,  at  any  general  court- 
martial,  shall  transmit,  with  as  much  expedition  as  the  opportunity  of  time 
and  distance  of  place  can  admit,  the  original  proceedings  and  sentence  of 
such  court-martial,  to  the  secretary  at  war,  which  said  original  proceedings 
and  sentence,  shall  be  carefully  kept  and  preserved,  in  the  office  of  the  said 
secretary,  to  the  end.  that  persons  entitled  thereto  may  be  enal)led.  upon 
application  to  the  said  oHice,  to  obtain  copies  thereof. 

The  party  tried  by  any  general  court-martial,  shall  be  entitled  to  a  copy 
of  the  sentence  and  proceedings  of  such  court-martial  after  a  decision  on  the 
sentence,  upon  demand  thereof  made  by  himself,  or  by  any  person  or  per- 
sons in  his  behalf,  whether  such  sentence  be  approved  or  not. 

Article  25.  In  such  cases  where  the  general  or  commanding  officer  may 
think  proper  to  order  a  court  of  inquiry,  to  examine  into  the  nature  of  any 
transaction,  accusation  or  imputation  against  any  officer  or  soldier,  the  said 
court  shall  be  conducted  conformably  to  tlie  following  regulations:  It  may 
consist  of  one  or  more  officers,  not  exceeding  3,  with  the  judge  advocate  or 
a  suitable  person  as  a  recorder,  to  reduce  the  proceedings  and  evidences  to 
writing,  all  of  whom  shall  be  sworn  to  the  faithful  performance  of  their 
duty.  This  court  shall  have  the  same  power  to  summon  witnesses  as  a 
court-martial,  and  to  examine  them  on  oath.  But  they  sliall  not  give  their 
opinion  on  the  merits  of  the  case,  excepting  they  shall  bo  thereto  specially 
required.  The  parties  accused  shall  also  be  permitted  to  cross-examine  and 
interrogate  the  witnesses,  so  as  to  investigate  fully  the  circumstances  in 
question. 

Article  26.  The  ])roceediugs  of  a  court  of  inquiry  must  be  authenticated 
by  the  signature  of  the  recorder  and  the  president,  and  delivered  to  the 
commanding  officer;  and  the  said  proceedings  may  be  admitted  as  evidence, 
by  a  court-martial,  in  cases  not  capital  or  extending  to  the  dismission  of  an 
officer:  provided,  that  the  circumstances  are  such  that  oral  testimony  cannot 
be  obtained.  But,  as  courts  of  inquiry  may  be  perverted  to  dishonorable 
purposes,  and  may  be  considered  as  engines  of  destruction  to  military  merit, 
in  the  hands  of  weak  and  envious  commandants,  they  are  hereby  prohibited, 
unless  demanded  by  the  accused. 

Article  27.  The  judge  advocate,  or  the  recorder,  shall  administer  to  the 
members  tiie  following  oath  : 

'•  You  shall  well  and  truly  examine  and  inquire,  according  to  your 
evidence,  into  the  matter  now  before  you,  without  favor  or  affection.  So 
help  you  God." 


624  APPENDIX  D. 

After  which  the  president  sluill  administer  to  the  judge  advdcate,  or 
recorder,  the  following  oath  : 

**  You  A.  B,  do  swear,  that  you  will,  according  to  your  best  abilities, 
accurately  and  impartially  record  the  proceedings  of  the  court,  and  the 
evidences  to  be  given  in  the  case  in  hearing.     So  help  you  God." 

The  witnesses  shall  take  the  same  oath  as  is  directed  to  be  administered 
to  witnesses  sworn  before  a  court-martial. 

Resolved,  That  when  any  desertion  shall  happen  from  the  troops  of  the 
United  States,  the  officer  commanding  the  regiment  or  corps  to  which  the 
deserters  belonged,  shall  be  responsible,  that  an  immediate  report  of  the 
same  be  made  to  the  commanding  officer  of  the  forces  of  the  United  States 
present. 

Resolved,  That  the  commanding  officer  of  any  of  the  forces  in  the  service 
of  the  United  States,  shall,  upon  report  made  to  him  of  any  desertions  in 
the  troops  under  his  orders,  cause  the  most  immediate  and  vigorous  search 
to  be  made  after  the  deserter  or  deserters,  which  may  be  conducted  by  a 
commissioned  or  non-commissioned  officer,  as  the  case  shall  require.  That, 
if  such  search  should  prove  ineffectual,  the  officer  commanding  the  regiment 
or  corps  to  which  the  deserter  or  deserters  belonged,  shall  insert,  in  the 
nearest  gazette  or  newspaper,  an  advertisement,  descriptive  of  the  deserter 
or  deserters,  and  offering  a  reward,  not  exceeding  ten  dollars,  for  each 
deserter,  who  shall  be  apprehended  and  secured  in  any  of  the  gaols  in  the 
neighboring  states.  That  the  charges  of  advertising  deserters,  the  reasonable 
extra  expenses  incurred  by  the  person  conducting  the  pursuit,  and  the 
reward,  shall  be  paid  by  the  secretary  at  war,  on  the  certificate  of  the  com.- 
manding  officer  of  the  troops. 


APPENDIX   E. 

AMERICAN  ARTICLES  OF  1806.' 

Section  1.  Be  it  enacted,  hy  the  Senate  and  House  of  liepresentafives 
of  the  United  States  of  America,  in  Congress  assembled,  That,  from  aud 
after  the  passing  of  this  act,  the  following  shall  be  the  rules  and  articles  by 
which  the  armies  of  the  United  States  shall  be  governed: 

Article  1.  Every  otticer  now  in  the  army  of  the  United  States  shall,  in 
six  months  from  the  passing  of  this  act,  and  every  officer  who  shall  hereafter 
be  appointed  shall,  before  he  enters  on  the  duties  of  his  office,  subscribe 
these  rules  and  regulations. 

Article  2.  It  is  earnestly  recommended  to  all  officers  and  soldiers 
diligently  to  attend  divine  service  ;  and  all  officers  who  shall  behave  in- 
decently or  irreverently  at  any  place  of  divine  worsliip  shall,  if  commissioned 
officers,  be  brought  before  a  general  court-martial,  there  to  be  publicly  and 
severely  reprimanded  by  the  president  ;  if  non-commissioned  officers  or 
soldiers,  every  person  so  offending  shall,  for  his  first  offence,  forfeit  one-sixth 
of  a  dollar,  to  be  deducted  out  of  his  next  pay;  for  the  second  offence,  he 
shall  not  only  forfeit  a  like  sum,  but  be  confined  twenty- four  hours;  and  for 
every  like  offence,  shall  suffer  and  pay  in  like  manner;  which  money,  so 
forfeited,  shall  be  applied,  by  the  captain  or  senior  officer  of  the  troop  or 
company,  to  the  use  of  the  sick  soldiers  of  the  company  or  troop  to  which 
the  offender  belongs. 

Article  3.  Any  non-commissioned  officer  or  soldier  who  shall  use  anv 
profane  oath  or  execration,  shall  incur  the  penalties  expressed  in  the  fore- 
going article:  and  a  commissioned  officer  shall  forfeit  and  pay,  for  each  and 
every  such  offence,  one  dollar,  to  be  applied  as  in  the  preceding  article. 

Article  4.  Every  chaplain  commissioned  in  the  army  or  armies  of  the 
United  States,  who  sluill  absent  himself  from  the  duties  assigned  him 
(excepting  in  cases  of  sickness  or  leave  of  absence),  shall,  on  conviction 
thereof  before  a  court-martial,  be  fined  not  exceeding  one  month's  pay, 
besides  the  loss  of  his  pay  during  his  absence  ;  or  be  discharged,  as  the  said 
court-martial  shall  judge  proper. 


»  Act  of  April  10,  1806(2  Stat,  at  Large.  259). 

625 


626  APPEyDIX  E. 

Article  5.  Any  officer  or  soklier  who  shall  use  eoutemptuous  or  dis- 
respectful words  against  the  President  of  the  United  States,  against  the 
Vice-President  thereof,  against  tlie  Congress  of  the  United  States,  or  against 
the  Chief  Magistrate  or  Legislature  of  any  of  the  United  States,  in  which  he 
may  be  quartered,  if  a  commissioned  officer,  shall  be  cashiered,  or  otherwise 
punished,  as  a  court-marti:d  shall  direct;  if  a  non-commissioned  officer  or 
soldier,  he  shall  suffer  sncii  punishment  as  shall  be  inflicted  on  him  by  the 
sentence  of  a  court-martial. 

Article  6.  Any  officer  or  soldier  who  shall  behave  himself  with  contempt 
or  disrespect  toward  his  commanding  officer,  shall  be  punished,  according  to 
the  nature  of  his  offence,  by  the  judgment  of  a  court-martial. 

Article  7.  Any  officer  or  soldier  who  shall  begin,  excite,  cause,  or  join  in, 
any  mutiny  or  sedition,  in  any  troop  or  company  in  the  service  of  the  United 
States,  or  in  any  party,  post,  detachment,  or  guard,  shall  suffer  death,  or 
such  other  pu7iishment  as  by  a  court-martial  shall  be  inflicted. 

Article  8.  Any  officer,  non-commissioned  officer,  or  soldier,  who,  being 
present  at  any  mutiny  or  sedition,  does  not  use  his  utmost  endeavor  to  sup- 
press the  same,  or,  coming  to  the  knowledge  of  any  intended  mutiny,  does 
not.  without  delay,  give  information  thereof  to  his  commanding  officer,  shall 
be  punished  by  the  senience  of  a  court-martial  with  death,  or  otherwise,  ac- 
cording to  the  nature  of  his  offense. 

Article  9.  Any  officer  or  soldier  who  shall  strike  his  superior  officer,  or 
draw  or  lift  up  any  weapon,  oi-  offer  any  violence  against  him,  being  in  the 
execution  of  his  office,  on  any  pretense  whatsoever,  or  sliall  disobey  any  law- 
ful command  of  his  superior  officer,  shall  suffer  deatli,  or  such  other  punish- 
ment as  shall,  according  to  the  nature  of  liis  offense,  be  inflicted  upon  him 
by  the  sentence  of  a  court-martial. 

Article  10.  Every  non-commissioned  officer  or  soldier,  who  shall  enlist 
himself  in  the  service  of  the  United  States,  shall,  at  the  time  of  his  so  en- 
listing, or  within  six  days  afterward,  liave  the  Articles  for  the  government 
of  the  armies  of  the  United  States  read  to  him,  and  shall,  by  the  officer  who 
enlisted  him.  or  by  the  commanding  officer  of  the  troop  or  company  into 
which  he  was  enlisted,  be  taken  before  tlie  next  justice  of  iha  peace,  or  chief 
magistrate  of  any  city  or  town  corporate,  not  being  an  officer  of  the  army,' 
or  where  recourse  cannot  be  had  to  the  civil  magistrate,  before  the  judge  ad- 
vocate, and  in  his  presence  shall  take  the  following  oath  or  affirmation  :  '*  I, 
A.  13.,  do  solemnly  swear,  or  affirm  (as  the  case  may  be),  tliat  I  will  bear 
true  allegiance  to  the  United  States  of  America,  and  that  I  will  serve  them 
honestly  and  faithfully  against  all  their  enemies  or  opposers  whatsoever;  and 
observe  and  obey  the  orders  of  the  President  of  the  United  States,  and   the 

'  By  Sec.  11,  Act  of  Aiieust  3,  1861,  the  natli  of  enlistment  and  le-enlistinent  ma^  be 
administered  by  any  commissioned  olficei  of  tlie  Ainiy. 


AMERICAN  ARTICLES  OF  J606.  627 

orders  of  the  ofticers  ;tii]i<)iiitod  over  me,  accoi'tliuj,'  to  the  liule.--  aud  Articles 
for  the  goveriHiient  ol'  the  armies  of  the  United  States."  AVhicli  justice, 
magistrate,  or  judge  advocate  is  to  give  to  the  otticer  a  certificate,  siguifying 
tliat  tlic  man  enhsted  did  take  the  said  oath  or  attirmation. 

Article  11.  After  a  non-commissioned  officer  or  soldier  shall  have  been 
ilulv  enlisted  and  swdrn.  he  sliall  not  be  dismissed  the  service  without  a  dis- 
charge in  writing;  and  no  discharge  granted  to  him  shall  be  sufficient  which 
is  not  signed  by  a  field  officer  of  the  regiment  to  which  he  belongs,  or  com- 
manding officer,  where  no  field  officer  of  the  regiment  is  present:  and  no 
discharge  shall  be  given  to  a  uou-commissioned  oflicer  or  soldier  before  his 
term  of  service  has  expired,  but  by  order  of  the  President,  the  Secretary  of 
War,  the  commanding  officer  of  a  department,  or  the  sentence  of  a  general 
court-martial;  nor  shall  a  commissioned  officer  be  discharged  the  service  but 
bv  order  of  the  President  of  the  United  States,  or  by  sentence  of  a  general 
court-martial. 

Article  12.  Every  colonel,  or  other  officer  commanding  a  regiment, 
troop,  or  company,  and  actually  quartered  with  it,  may  give  furloughs  to 
non-commissioTied  officers  or  soldiers,  in  sucli  numbers,  and  for  so  lonjr  u 
time,  as  he  shall  judge  to  be  most  consistent  with  the  good  of  the  service; 
and  a  captain,  or  other  inferior  officer,  commanding  a  troop  or  company,  or 
in  any  garrison,  fort,  or  barrack  of  the  United  States  (his  field  officer  being 
absent),  may  give  furloughs  to  non-commissioned  officers  or  soldiers,  for  a 
time  not  exceeding  twenty  days  in  six  months,  but  not  to  more  than  two 
persons  to  be  absent  at  the  same  time,  excepting  some  extraordinary  occasion 
should  require  it. 

Article  13.  At  every  muster,  the  commanding  officer  of  each  regiment, 
troop,  or  company,  there  present,  shall  give  to  the  commissary  of  musters, 
or  other  officer  who  musters  the  said  regiment,  troop,  or  companv,  certifi- 
cates signed  by  himself,  signifying  how  long  such  officers,  as  shall  not  ap- 
pear at  the  said  muster,  have  been  absent,  and  the  reason  of  their  absence. 
In  like  manner,  the  commanding  officer  of  every  troop  or  company  shall  give 
certificates,  signifying  the  reasons  of  the  absence  of  the  non-commissioned 
officers  aud  private  soldiers;  which  reasons  and  time  of  absence  shall  be  in- 
serted in  the  muster-rolls,  opposite  the  names  of  the  respective  absent  officers 
and  soldiers.  The  certificates  shall,  together  with  the  muster-rolls,  be  re- 
mitted by  the  commissary  of  musters,  or  other  officer  mustering,  to  the 
Department  of  War,  as  speedily  as  the  distance  of  the  ]ilace  will  admit. 

Article  14.  Every  officer  who  shall  be  convicted  before  a  general  court- 
martial  of  having  signed  a  false  certificate  relating  to  the  absence  of  either 
officer  or  private  soldier,  or  relative  to  his  or  their  pay.  shall  be  cashiered. 

Article  15.  Every  officer  who  shall  knowingly  make  a  false  muster  of 
man  or  horse,  and  every  officer  or  commissary  of  musters  who  shall  willinglv 
sign,  direct,  or  allow  the  signing  of  muster-rolls  wherein  such  false  muster 


628  APPENDIX  E. 

is  contained,  shall,  upon  proof  made  thereof,  by  two  witnesses,  before  a 
general  court-martial,  be  cashiered,  and  shall  be  thereby  utterly  disabled  to 
have  or  hold  any  ottice  or  employment  in  the  service  of  the  United  States. 

Article  16.  Any  commissary  of  musters,  or  other  officer,  who  shall  be 
convicted  of  having  taken  money,  or  other  thing,  by  way  of  gratification,  on 
mustering  any  regiment,  troop,  or  company,  or  on  signing  muster-rolls,  shall 
be  displaced  from  his  office,  and  shall  be  thereby  utterly  disabled  to  have  or 
hold  any  office  or  employment  in  the  service  of  the  United  States. 

Article  17.  Any  officer  who  shall  presume  to  muster  a  person  as  a  soldier 
who  is  not  a  soldier,  shall  be  deemed  guilty  of  having  made  a  false  muster, 
and  shall  suffer  accordingly. 

Article  18.  Every  officer  who  shall  knowingly  make  a  false  return  to 
the  Department  of  War,  or  to  any  of  his  superior  officers,  authorized  to  call 
for  such  returns,  of  the  state  of  the  regiment,  troop,  or  company,  or  garri- 
son, under  his  command;  or  of  the  arms,  ammunition,  clothing,  or  other 
stores  thereunto  belonging,  shall,  on  conviction  thereof  before  a  court-mar- 
tial, be  cashiered. 

Article  19.  The  commanding  officer  of  every  regiment,  troop,  or  inde- 
pendent company,  or  garrison,  of  the  United  States,  shall,  in  the  be- 
ginning of  every  month,  remit,  through  the  proper  channels,  to  the  Depart- 
ment of  War,  an  exact  return  of  the  regiment,  troop,  independent  company, 
or  garrison,  under  his  command,  specifying  the  names  of  the  officers  then 
absent  from  their  posts,  with  the  reasons  for  and  the  time  of  their  absence. 
And  any  officer  who  shall  be  convicted  of  having,  through  neglect  or  design, 
omitted  sending  such  returns,  shall  be  punished,  according  to  the  nature  of 
his  crime,  by  the  judgment  of  a  general  court-martial. 

Article  20.  All  officers  and  soldiers  who  have  received  pay,  or  have  been 
duly  enlisted  in  the  service  of  the  United  States,  and  shall  be  convicted  of 
having  deserted  the  same,  shall  suffer  death,  or  such  other  punishment  as, 
by  sentence  of  a  court-martial,  shall  be  inflicted. 

Article  21.  Anv  non-commissioned  officer  or  soldier  who  shall,  without 
leave  from  his  commanding  officer,  absent  himself  from  his  troop,  company, 
or  detachment,  shall,  upon  being  convicted  thereof,  be  punished  according 
to  the  nature  of  his  offence,  at  the  discretion  of  a  court-martial. 

Article  22.  No  non-commissioned  officer  or  soldier  shall  enlist  himself  in 
any  other  regiment,  troop,  or  company,  without  a  regular  discharge  from 
the  regiment,  troop,  or  company  in  which  he  last  served,  on  the  penalty  of 
being  reputed  a  deserter,  and  suffering  accordingly.  And  in  case  any  officer 
shall  knowingly  receive  and  entertain  such  non-commissioned  officer  or  sol- 
dier, or  shall  not,  after  his  being  discovered  to  be  a  deserter,  immediately 
confine  him,  and  give  notice  thereof  to  the  corps  in  which  he  last  served, 
the  said  officer  shall,  by  a  court-martial,  be  cashiered. 

Article  23.  Any  officer  or  soldier  who  shall  be  convicted  of  having  ad- 


AMERlCAy  ARTICLES  OF  1806. 


f.29 


vised   or  persuaded   any  other  officer  or  soldier  to  desert  the  service  of  the 
United  States,  shall  suller  death,  or  sucli  other  puuishmeut  as  shall  be  in 
llicted  upon  him  by  the  sentence  of  a  court-martial. 

Article  24.  No  officer  or  soldier  shall  use  any  reproachful  or  provoking 
speeches  or  gestures  to  another,  upon  pain,  if  an  officer,  of  being  put  in  ar- 
rest; if  a  soldier,  confined,  and  of  asking  jjurdon  of  the  party  offended,  in 
the  presence  of  his  commanding  officer. 

Article  25.  No  officer  or  soldier  shall  send  a  challenge  to  another  officer 
or  soldier,  to  fight  a  duel,  or  accept  a  challenge  if  sent,  upon  pain,  if  a 
commissioned  officer,  of  being  cashiered;  if  a  non-commissioned  officer 
or  soldier,  of  suffering  corporeal  punishment,  at  the  discretion  of  a  court- 
martial. 

Article  26.  If  any  commissioned  or  non-commissioned  officer  command- 
ing a  guard  shall  knowingly  or  willingly  suffer  any  person  whatsoever  to  go 
forth  to  fight  a  duel,  he  shall  be  punished  as  a  challenger;  and  all  seconds, 
promoters,  and  carriers  of  challenges,  in  order  to  duels,  shall  be  deemed 
principals,  and  be  punished  accordingly.  And  it  shall  be  the  duty  of  every 
officer  commanding  an  army,  regiment,  company,  post,  or  detachment,  who 
is  knowing  to  a  challenge  being  given  or  accepted  by  any  officer,  non-com- 
missioned officer,  or  soldier,  under  his  command,  or  has  reason  to  believe 
the  same  to  be  the  case,  immediately  to  arrest  and  bring  to  trial  such 
offenders. 

Article  27.  All  officers,  of  what  condition  soever,  have  power  to  part  and 
quell  all  quarrels,  frays,  and  disorders,  though  the  persons  concerned  should 
belong  to  another  regiment,  troop,  or  company;  and  either  to  order  officers 
into  arrest,  or  non-commissioned  officers  or  soldiers  into  confinement,  until 
their  proper  superior  officer  shall  be  acquainted  therewith;  and  whosoever 
shall  refuse  to  obey  such  officer  (though  of  an  inferior  rank),  or  sliall  draw 
liis  sword  upon  him,  shall  be  punished  at  the  discretion  of  a  general  court- 
martial. 

Article  28.  Any  officer  or  soldier  who  shall  upbraid  another  for  refusing 
a  challenge,  shall  himself  be  punished  as  a  challenger;  and  all  officers  and 
soldiers  are  hereby  discharged  from  any  disgrace  or  opinion  of  disadvantage 
which  might  arise  from  their  having  refused  to  accept  of  challenges,  as  they 
will  only  have  acted  in  obedience  to  the  laws,  and  done  tlieir  duty  as  good 
soldiers  who  subject  themselves  to  discipline. 

Article  29.  No  sutler  shall  be  permitted  to  sell  any  kind  of  liquors  or 
victuals,  or  to  keep  their  houses  or  shops  open  for  the  entertainment  of  sol- 
diers, after  nine  at  night,  or  before  the  beating  of  the  reveille,  or  upon  Sun- 
days, during  divine  service  or  sermon,  on  the  penalty  of  being  dismissed 
from  all  future  sutling. 

Article  30.  All  officers  commanding  in  the  field,  forts,  barracks,  or  gar- 
risons of  the  United   States,  are  hereby  required  to  see  that  the  persons 


630  APPENDIX   E. 

permitted  to  suttle  shall  supply  the  soldiers  with  good  and  wholesome  pro- 
visions, or  other  articles,  at  a  reasonable  price,  as  they  shall  be  answerable 
for  their  neglect. 

Article  31.  ^»o  otticer  commanding  in  any  of  the  garrisons,  forts,  or 
barracks  of  the  United  States,  shall  exact  exorbitant  prices  for  houses  or 
stalls,  let  out  to  sutlers,  or  connive  at  the  like  exactions  in  others;  nor  by 
his  own  authority,  and  for  his  private  advantage,  lay  any  duty  or  imposition 
upon,  or  be  interested  in,  the  sale  of  any  victuals,  liquors,  or  other  necessa- 
ries of  life  brought  into  the  garrison,  fort  or  barracks,  for  the  use  of  the 
soldiers,  on  the  penalty  of  being  discharged  from  the  service. 

Article  32.  Every  otticer  commanding  in  quarters,  garrisons,  or  on  the 
march,  shall  keep  good  order,  and,  to  the  utmost  of  his  power,  redress  all 
abuses  or  disorders  which  may  be  committed  by  any  officer  or  soldier  under 
his  command;  if,  upon  complaint  made  to  him  of  officers  or  soldiers  beating 
or  otherwise  ill-treating  any  })erson,  or  disturbing  fairs  or  markets,  or  of 
committing  any  kind  of  riots,  to  the  disquieting  of  the  citizens  of  the  United 
States,  he,  the  said  commander,  who  shall  refuse  or  omit  to  see  justice  done 
to  the  offender  or  offenders,  and  reparation  made  to  the  party  or  parties  in- 
jured, as  far  as  part  of  the  offender's  pay  shall  enable  him  or  them,  shall, 
upon  proof  thereof,  be  cashiered,  or  otherwise  punished,  as  a  general  court- 
martial  shall  direct. 

Article  33.  When  any  commissioned  officer  or  soldier  shall  be  accused  of 
a  capital  crime,  or  of  having  used  violence,  or  committed  any  offense  against 
the  person  or  property  of  any  citizen  of  any  of  the  United  States,  such  as  is 
punishable  by  the  known  laws  of  the  land,  the  commanding  officer  and  offi- 
cers of  every  regiment,  troop,  or  company  to  which  the  person  or  persons  so 
accused  shall  belong,  are  hereby  required,  upon  application  duly  made  by,  or 
in  behalf  of,  the  party  or  parties  injured,  to  use  their  utmost  endeavors  to 
deliver  over  such  accused  person  or  persons  to  the  civil  magistrate,  and 
likewise  to  be  aiding  and  assisting  to  the  officers  of  justice  in  apprehending 
and  securing  the  person  or  persons  so  accused,  in  orderto  bring  him  or  them 
to  trial.  If  any  commanding  officer  or  officers  shall  wilfully  neglect,  or 
shall  refuse  upon  the  application  aforesaid,  to  deliver  over  such  accused  per- 
son or  persons  to  the  civil  magistrates,  or  to  be  aiding  and  assisting  to  the 
officers  of  justice  in  apprehending  such  person  or  persons,  the  officer  or  offi- 
cers so  offending  shall  be  cashiered. 

Article  34.  If  any  officer  shall  think  himself  wronged  by  his  Colonel,  or 
the  commanding  officer  of  the  regiment,  and  shall,  upon  due  application  be- 
ing made  to  him,  be  refused  redi-ess,  he  may  complain  to  the  General  com- 
manding in  the  State  or  Territory  where  such  regiment  shall  be  stationed, 
in  order  to  obtain  justice;  who  is  hereby  required  to  examine  into  said  com- 
plaint, and  take  proper  measures  for  redressing  the  wrong  complained  of. 


AMERICAN  ARTICLES   OF  ISOG.  631 

and  transmit,  as  soon  as  possible,  to  the  Department  of  War,  a  true  state  of 
such  com[)hiint,  with  tlie  proceedings  had  thereoii. 

Article  35.  If  uiiy  inferior  otlicer  or  soldier  shall  think  himself  wronged 
by  his  Captain  or  other  otlicer,  he  is  to  complain  thereof  to  the  commanding 
officer  of  the  regiment,  who  is  hereby  required  to  summon  a  regimental 
court-martial,  for  the  doing  justice  to  the  complainant;  from  whicli  regi- 
mental court-martial  citiier  i^irty  may,  if  he  thinks  himself  still  aggrieved, 
appeal  to  a  general  court-martial.  ]5ut  if,  upon  a  second  hearing,  the  appeal 
shall  appear  vexatious  and  groundless,  the  person  so  appealing  shall  be  pun- 
ished at  the  discretion  of  the  said  court-martial. 

Article  36.  Any  commissioned  officer,  store-keeper,  or  commissary,  who 
shall  be  convicted  at  a  general  court-martial  of  having  sold,  without  a  proper 
order  for  that  purpose,  embezzled,  misapplied,  or  wilfully,  or  through  neglect, 
suffered  any  of  the  provisions,  forage,  arms,  clothing,  ammunition,  or  other 
military  stores  belonging  to  the  United  States  to  be  spoiled  or  damaged, 
shall,  at  his  own  expense,  make  good  the  loss  or  damage,  and  shall,  more- 
over, forfeit  all  his  pay.  and  be  dismissed  from  the  service. 

Article  37.  Any  non-commissioned  officer  or  soldier  who  shall  be  con- 
victed at  a  regimental  court-martial  of  having  sold,  or  designedly,  or  through 
neglect,  wasted  the  ammunition  delivered  out  to  him,  to  be  employed  in  the 
service  of  the  United  States,  shall  be  punished  at  the  discretion  of  such 
court. 

Article  38.  Every  non-commissioned  officer  or  soldier  who  shall  be  con- 
victed before  a  court-martial  of  having  sold,  lost,  or  spoiled,  through  neglect, 
his  horse,  arms,  clothes,  or  accoutrements,  shall  undergo  such  weekly  stop- 
pages (not  exceeding  the  half  of  his  pay)  as  such  court-martial  shall  judge 
sufficient,  for  repairing  the  loss  or  damage:  and  shall  suffer  confinement,  or 
•such  other  corporeal  punishment  as  his  crime  shall  deserve. 

Article  39.  Every  officer  who  shall  be  convicted  before  a  court-martial 
of  having  embezzled  or  misapplied  any  money  with  which  he  may  have  been 
intrusted,  for  the  payment  of  the  men  under  his  command,  or  for  enlisting 
men  into  the  service,  or  for  other  ]varposes,  if  a  commissioned  officer,  shall 
be  cashiered,  and  comjielled  to  refund  the  money:  if  a  non-commissioned 
officer,  shall  be  reduced  to  the  ranks,  be  put  under  stoppages  until  the  money 
be  made  good,  and  suffer  such  corporeal  ]iunishment  as  such  court-martial 
shall  direct. 

Article  40.  Every  captain  of  a  troop  or  company  is  charged  with  the 
arms,  accoutrements,  ammunition,  clothing,  or  other  warlike  stores  belong- 
ing to  the  troop  or  company  under  his  command,  which  he  is  to  be  account- 
able for  to  his  Colonel  in  case  of  their  being  lost,  spoiled,  or  damaged,  not 
by  unavoidable  accidents,  or  on  actual  service. 

Article  41.  All  non-commissioned  officers  and  soldiers  who  shall  be 
found  one  mile  from  the  camp  without  leave,  in  writing,  from  their  com- 


632  APPENDIX  E. 

mandiiig  officer,  shall  suffer  such  puuislmient  as  shall  be  inflicted  upon  them 
by  tlie  sentence  of  a  court-martial. 

Article  42.  Xo  officer  or  soldier  shall  lie  out  of  his  quarters,  garrison,  or 
camp  without  leave  from  his  superior  officer,  upon  penalty  of  being  pun- 
ished according  to  the  nature  of  his  offense,  by  the  sentence  of  court-martial. 

Article  43.  Every  non-commissioned  officer  and  soldier  shall  retire  to 
his  quarters  or  tent  at  the  beating  of  the  retreat;  in  default  of  which  he 
shall  bo  punished  according  to  the  nature  of  his  offense. 

Article  44.  No  officer,  non-commissioned  officer,  or  soldier  shall  fail  in 
repairing,  at  the  time  fixed,  to  the  place  of  parade,  of  exercise,  or  other  ren- 
dezvous appointed  by  his  commanding  officer,  if  not  prevented  by  sickness 
or  some  other  evident  necessity,  or  shall  go  from  the  said  place  of  rendezvous 
without  leave  from  his  commanding  officer,  before  he  shall  be  regularly  dis- 
missed or  relieved,  on  the  penalty  of  being  punished,  according  to  the  nature 
of  his  offense,  by  the  sentence  of  a  court-martial. 

Article  45.  Any  commissioned  officer  who  shall  be  found  drunk  on  his 
guard,  party,  or  other  duty,  shall  be  cashiered.  Any  non-commissioned 
officer  or  soldier  so  offending  shall  suffer  such  corporeal  punishment  as  shall 
be  inflicted  by  the  sentence  of  a  court-martial. 

Article  46.  Any  sentinel  who  shall  be  found  sleeping  upon  his  post,  or 
shall  leave  it  before  he  shall  be  regularly  relieved,  shall  suffer  death,  or  such 
other  punishment  as  shall  be  inflicted  by  the  sentence  of  a  court-martial. 

Article  47.  No  soldier  belonging  to  any  regiment,  troop,  or  company 
shall  hire  another  to  do  his  duty  for  him,  or  be  excused  from  duty  but  in 
cases  of  sickness,  disability,  or  leave  of  absence;  and  every  such  soldier  found 
guilty  of  hiring  his  duty,  as  also  the  party  so  hired  to  do  another's  duty, 
shall  be  punished  at  the  discretion  of  a  regimental  court-martial. 

Article  48.  And  every  non-commissioned  officer  conniving  at  such  hiring 
of  duty  aforesaid,  shall  be  reduced;  and  every  commissioned  officer  knowing 
and  allowing  such  ill-practices  in  the  service,  shall  be  punished  by  the  judg- 
ment of  a  general  court-martial. 

Article  49.  Any  officer  belonging  to  the  service  of  the  United  States, 
who,  by  discharging  of  flre-arms,  drawing  of  swords,  beating  of  drums,  or  by 
any  other  means  whatsoever,  shall  occasion  false  alarms  in  camp,  garrison,  or 
quarters,  shall  suffer  death,  or  such  other  punishment  as  shall  be  ordered  by 
the  sentence  of  a  general  court-martial. 

Article  50.  Any  officer  or  soldier  who  shall,  without  urgent  necessity,  or 
without  the  leave  of  his  superior  officer,  quit  his  guard,  platoon,  or  division, 
shall  be  punished,  according  to  the  nature  of  his  offense,  by  the  sentence  of 
a  court-martial. 

Article  51.  Xo  officer  or  soldier  shall  do  violence  to  any  person  who 
brings  provisions  or  other  necessaries  to  the  camp,  garrison,  or  quarters  of 


AMERICAN  AliriCLES   OF  1806.  633 

the  forces  of  tlie  United  States,  einployod  in  any  parts  out  of  the  said  States, 
upon  pain  of  death,  or  sucli  other  puuisiinienl  as  a  court-martial  shall  direct. 

Article  52.  Any  officer  or  soldier  who  shall  misbehave  himself  before  the 
enemy,  run  away,  or  shamefully  abandon  any  fort,  post,  or  guard  which  he 
or  they  may  be  commanded  to  defend,  or  speak  words  inducing  others  to  do 
the  like,  or  sliull  cast  away  his  arms  and  ammunition,  or  who  shall  quit  his 
post  or  colors  to  plunder  and  pillage,  every  such  offender,  being  duly  con- 
victed thereof,  shall  suffer  death,  or  such  other  punishment  as  shall  be 
ordered  by  tlie  sentence  of  a  general  court-martial. 

Article  53.  Any  person  belonging  to  the  armies  of  the  United  States 
who  shall  make  known  the  watchword  to  any  person  who  is  not  entitled  to 
receive  it  according  to  the  rules  and  discipline  of  war,  or  shall  pre.«;ume  to 
give  a  parole  or  watchword  different  from  wOiat  he  received,  shall  suffer 
death,  or  such  other  punishment  as  shall  be  ordered  by  the  sentence  of  a 
general  court-martial. 

Article  54.  All  officers  and  soldiers  are  to  behave  themselves  orderly  in 
quarters  and  on  their  march ;  and  whoever  shall  commit  any  waste  or  spoil, 
either  in  walks  of  trees,  parks,  warrens,  fish-ponds,  houses,  or  gardens, 
corn-fields,  inclosures  of  meadows,  or  shall  maliciously  destroy  any  property 
whatsoever  belonging  to  the  inhabitants  of  the  United  States,  unless  by 
order  of  the  then  commander-in-chief  of  the  armies  of  the  said  States,  shall 
(besides  such  penalties  as  they  are  liable  to  by  law)  be  punished  according 
to  the  nature  and  degree  of  the  oiiense,  by  the  judgment  of  a  regimental  or 
general  court-martial. 

Article  55.  Wbosoever,  belonging  to  the  armies  of  the  United  States  in 
foreign  parts,  shall  force  a  safeguard,  shall  snffer  death. 

Article  56.  Whosoever  shall  relieve  the  enemy  with  money,  victuals,  or 
ammunition,  or  shall  knowingly  harbor  or  protect  an  enemy,  shall  snffer 
death,  or  such  other  punishment  as  shall  be  ordered  by  the  sentence  of  a 
court-martial. 

Article  57.  Whosoever  shall  be  convicted  of  holding  correspondence 
with,  or  giving  intelligence  to,  the  enemy,  either  directly  or  indirectly,  shall 
suffer  death,  or  such  other  punishment  as  shall  be  ordered  by  the  sentence 
of  a  court-martial. 

Article  58.  All  public  stores  taken  in  the  enemy's  camp,  towns,  forts, 
or  magazines,  whether  of  artillery,  ammunition,  clothing,  forage  or  provi- 
sions, shall  be  secured  for  the  service  of  the  Ignited  States;  for  the  neglect 
of  which  the  commanding  officer  is  to  be  answerable. 

Article  59.  If  any  commander  of  any  garrison,  fortress,  or  post  shall  be 
compelled,  by  the  officers  and  soldiers  under  his  command,  to  give  up  to 
the  enemy,  or  to  abandon  it,  the  commissioned  officers,  non-commissioned 
officers,  or  soldiers  who  shall  be  convicted  of  having  so  offended,  shall  snffer 


634:  APPENDIX  E. 

•death,  or  such  other  punishment  as  shall  be  inflicted  upon  them  by  the  sen- 
tence of  a  court-martial. 

Article  60.  All  sutlers  and  retainers  to  the  camp,  and  all  persons  what- 
soever, serving  with  the  armies  of  the  United  States  in  the  field,  though  not 
enlisted  soldiers,  are  to  be  subject  to  orders,  according  to  the  rules  and  dis- 
cipline of  war. 

Article  61.  Officers  having  brevets  or  commissions  of  a  prior  date  to 
those  of  the  regiment  in  which  they  serve,  may  take  place  in  courts-martial 
and  OTi  detachments,  when  composed  of  different  corps,  according  to  the 
ranks  fiven  them  in  their  brevets  or  dates  of  their  former  commissions;  but 
in  the  regiment,  troop,  or  company  to  which  such  officers  belong,  they  shall 
do  duty  and  take  rank  both  in  courts-martial  and  on  detachments  which 
shall  be  composed  of  their  own  corps,  according  to  the  commissions  by 
which  they  are  mustered  in  the  said  corps. 

Article  62.  If,  upon  marches,  guards,  or  in  quarters,  different  corps  of 
the  army  shall  happen  to  join,  or  do  duty  together,  the  officer  highest  in 
rank  of  the  line  of  the  army,  marine  corps,  or  militia,  by  commission,  there 
on  duty  or  in  quarters,  shall  command  the  whole,  and  give  orders  for  what 
is  needful  to  the  service,  unless  otherwise  specially  directed  by  the  President 
of  the  United  States,  according  to  the  nature  of  the  case. 

Article  63.  The  functions  of  the  engineers  being  generally  confined  to 
the  most  elevated  branch  of  military  science,  they  are  not  to  assume,  nor 
are  they  subject  to  be  ordered  on  any  duty  beyond  the  line  of  their  imme- 
diate profession,  except  by  the  special  order  of  the  President  of  the  United 
States;  but  they  are  to  receive  every  mark  of  respect  to  which  their  rank  in 
the  army  may  entitle  them  respectively,  and  are  liable  to  be  transferred,  at 
the  discretion  of  the  President,  from  one  corps  to  another,  regard  being  paid 
to  rank. 

Article  64.  General  courts-martial  may  consist  of  any  number  of  com- 
missioned officers,  from  five  to  thirteen,  inclusively;  but  they  shall  not  con- 
sist of  less  than  thirteen  where  that  number  can  be  convened  without 
manifest  injury  to  the  service. 

Article  65.  Any  general  officer  commanding  an  army,  or  Colonel  com- 
numding  a  separate  department,  may  appoint  general  courts-martial  when- 
ever necessary.  But  no  sentence  of  a  court-martial  shall  be  carried  into 
execution  until  after  the  whole  proceedings  shall  have  been  laid  before  the 
officer  ordering  the  same,  or  the  officer  commanding  the  troops  for  the  time 
being;  neither  shall  any  sentence  of  a  general  court-martial,  in  the  time  of 
peace,  extending  to  the  loss  of  life,  or  the  dismission  of  a  commissioned 
officer,  or  which  shall,  either  in  time  of  i)eace  or  war,  respect  a  general 
officer,  be  carried  into  execution,  until  after  the  whole  proceedings  shall 
have  been  transmitted  to  the  Secretary  of  War,  to  be  laid  before  the  Presi- 
dent of  the  United  States  for  his  confirmation  or  disapproval,  and  orders  in 


jiMKlilCAN  ARTICLES  OF  1S06.  635 

the  case.  AH  other  sentences  may  be  confirmed  and  executed  by  the  officer 
ordering  the  court  to  assemble,  or  the  commanding  otlicer  for  the  time  being, 
as  the  case  may  be. 

Article  66.  Kvery  officer  commanding  a  regiment  or  corps  may  appoint, 
for  his  own  regiment  or  corps,  courts-martial,  to  consist  of  three  commis- 
sioned officers,  for  the  trial  and  punisliment  of  olTenses  not  capital,  and 
decide  upon  their  sentences.  For  the  same  purpose,  all  officers  commanding 
any  of  the  garrisons,  forts,  barracks,  or  other  places  where  the  troops  consist 
of  different  corps,  may  assemble  courts-martial,  to  consist  of  three  commis- 
sioned officers,  and  decide  upon  their  sentences. 

Article  67.  No  garrison  or  regimental  court-martial  shall  have  the  power 
to  try  capital  cases  or  commissioned  othcers;  neither  shall  they  inflict  a  tine 
exceeding  one  month's  pay,  nor  imprison,  nor  put  to  hard  labor,  any  non- 
commissioned officer  or  soldier  for  a  longer  time  than  one  month. 

Article  68.  Whenever  it  may  be  found  convenient  and  necessary  to  the 
public  service,  tlie  officers  of  the  marines  shall  be  associated  with  the  officers 
of  the  land  forces,  for  the  purpose  of  holding  courts-martial,  and  trying 
offenders  belonging  to  either;  and,  in  such  cases,  the  orders  of  the  senior 
officer  of  either  corps  who  may  be  present  and  duly  authorized,  shall  be 
received  and  obeyed. 

Article  69.  The  judge-advocate,  or  some  person  deputed  by  him,  or  by 
the  general,  or  officer  commanding  the  army,  detachment,  or  garrison,  shall 
prosecute  in  the  name  of  the  United  States,  but  shall  so  far  consider  himself 
as  counsel  for  the  prisoner,  after  the  said  prisoner  shall  have  made  his  plea, 
as  to  object  to  any  leading  question  to  any  of  the  witnesses  or  any  question 
to  the  prisoner,  the  answer  to  which  might  tend  to  criminate  himself;  and 
administer  to  each  member  of  the  court,  before  they  proceed  upon  any  trial, 
the  following  oath,  which  shall  also  be  taken  by  all  members  of  the  regi- 
mental and  garrison  courts-martial. 

"  You,  A.  B.,  do  swear  that  you  will  well  and  truly  try  and  determine, 
according  to  evidence,  the  matter  now  before  you,  between  the  United 
States  of  America  and  the  prisoner  to  be  tried,  and  that  you  will  duly 
ailminister  justice,  according  to  the  provisions  of  'An  act  establishing  Rules 
and  Articles  for  the  government  of  the  armies  of  the  United  States,'  with- 
out partiality,  favor,  or  affection;  and  if  any  doubt  should  arise,  not 
explaine  1  by  said  Articles,  accor.ling  to  your  conscience,  the  best  of  your 
nnderstanding,  and  the  custom  of  w;ir  in  like  cases;  and  you  do  further 
swear  that  you  will  not  divulge  the  sentence  of  the  court  until  it  shall  be 
published  by  the  proper  authoritv:  neither  will  you  disclose  or  discover  the 
vote  or  opinion  of  any  particular  member  of  the  court-martial,  unless 
required  to  give  evidence  thereof,  as  a  witness,  by  a  court  of  justice,  in  a 
due  course  of  law.     So  help  you  God." 

As  soon  as  the  said  oath  shall  have  been  administered  to  the  respective 


636  APPENDIX  E. 

members,  the  president  of  the  court  shull  administer  to  the  judge  advocate, 
or  person  officiating  as  such,  an  oath  in  the  following  words: 

"  Yon,  A.  B.,  do  swear,  tliat  you  will  not  disclose  or  discover  the  vote 
or  opinion  of  any  particular  member  of  the  court-martial,  unless  required  to 
give  evidence  thereof,  as  a  witness,  by  a  court  of  justice,  in  due  course  of 
law-  nor  divulge  the  sentence  of  the  court  to  any  but  the  proper  authority, 
until  it  shall  be  duly  disclosed  by  the  same.     So  help  you  (Jod." 

Article  70.  When  a  prisoner,  arraigned  before  a  general  court-martial, 
shall,  from  obstinacy  and  deliberate  design,  stand  mute,  or  answer  foreign 
to  the  purpose,  the  court  may  proceed  to  trial  and  judgment  as  if  the  pris- 
oner had  regularly  pleaded  not  guilty. 

Article  71.  When  a  member  shall  be  challenged  by  a  prisoner,  he  must 
state  his  cause  of  challenge,  of  which  the  court  shall,  after  due  deliberation, 
determine  the  relevancy  or  validity,  and  decide  accordingly;  and  no  chal- 
lent^e  to  more  than  one  member  at  a  time  shall  be  received  by  the  court. 

Article  72.  All  the  members  of  a  court-martial  are  to  behave  with 
decency  and  calmness;  and  in  giving  their  votes  are  to  begin  with  the 
voungest  in  commission. 

Article  73.  All  persons  who  give  evidence  before  a  court-martial  are  to 
be  examined  on  oath  or  affirmation,  in  the  following  form: 

"  You  swear,  or  affirm  (as  the  case  may  be),  the  evidence  you  shall  give 
in  the  cause  now  in  hearing  shall  be  the  truth,  the  whole  truth,  and  nothing 
but  the  truth.     So  help  you  God." 

Article  74.  On  the  trials  of  cases  not  capital,  before  courts-martial,  the 
deposition  of  witnesses,  not  in  the  line  or  staff  of  the  Army,  may  be  taken 
before  some  justice  of  the  peace,  and  read  in  evidence;  provided  the  prose- 
cutor and  person  accused  are  present  at  the  talcing  the  same,  or  are  duly 
notified  thereof. 

Article  75.  No  officer  shall  be  tried  but  by  a  general  court-martial,  nor 
by  officers  of  an  inferior  rank,  if  it  can  be  avoided.  Nor  shall  any  proceed- 
ings of  trials  be  carried  on,  excepting  between  the  hours  of  eight  in  the 
morning  and  three  in  the  afternoon,  excepting  in  cases  which,  in  the  opinion 
of  the  officer  appointing  the  court-martial,  require  immediate  example. 

Article  76.  No  person  whatsoever  shall  use  any  menacing  words,  signs, 
or  gestures,  in  presence  of  a  court-martial,  or  shall  cause  any  disorder  or 
riot,  or  disturb  their  proceedings,  on  the  penalty  of  being  punished  at  the 
discretion  of  the  said  court-martial. 

Article  77.  Whenever  any  officer  shall  be  charged  with  a  crime,  he  shall 
be  arrested  and  confined  in  his  barracks,  quarters,  or  tent,  and  deprived  of 
his  sword  by  the  commanding  officer.  And  any  officer  who  shall  leave  his 
confinement  before  he  shall  be  set  at  liberty  by  his  commanding  officer,  or 
by  a  superior  officer,  shall  be  cashiered. 

Article  78.  Non-commissioned  officers  and  soldiers,  charged  with  crimes, 


AMERICAN  ARTICLES  OF  1806.  637 

shall  be  confined  until  tried  by  a  court-martial,  or  released  by  proper 
authority. 

Article  79.  No  officer  or  soldier  who  shall  be  put  in  arrest  shall  continue 
in  confinement  more  than  eight  days,  or  until  such  time  as  a  court-martial 
can  be  assembled. 

Article  80.  No  officer  commanding  a  guard,  or  provost  marshal,  shall 
refuse  to  receive  or  keep  any  j)ri3oner  committed  to  his  charge  by  an  officer 
belonging  to  the  forces  of  tlie  United  States;  provided  the  officer  committing 
shall,  at  the  same  time,  deliver  an  account  in  writing,  signed  by  himself,  of 
the  crime  with  which  tlie  said  prisoner  is  charged. 

Article  81.  No  officer  commanding  a  guard,  or  provost  marshal,  shall 
presume  to  release  any  person  committed  to  his  charge  without  proper 
authority  for  so  doing,  nor  shall  he  suffer  any  person  to  escape,  on  the 
penalty  of  being  punished  for  it  by  the  sentence  of  a  court-martial. 

Article  82.  Every  officer  or  provost  marshal,  to  whose  charge  prisoners 
shall  be  committed,  shall,  within  twenty-four  hours  after  such  commitment, 
or  as  soon  as  he  shall  be  relieved  from  his  guard,  make  report  in  writing,  to 
the  commanding  officer,  of  their  names,  their  crimes,  and  the  names  of  the 
officers  who  committed  them,  on  the  penalty  of  being  punished  for  disobedi- 
ence or  neglect,  at  the  discretion  of  a  court-martial. 

Article  83.  Any  commissioned  officer  convicted  before  a  general  court- 
martial  of  conduct  unbecoming  an  officer  and  a  gentleman,  shall  be  dismissed 
the  service. 

Article  84.  In  cases  where  a  court-martial  may  think  it  proper  to  sen- 
tence a  commissioned  officer  to  be  suspended  from  command,  they  shall  have 
power  also  to  suspend  his  pay  and  emoluments  for  the  same  time,  according 
to  the  nature  and  heinousness  of  the  offense. 

Article  85.  In  all  cases  where  a  commissioned  officer  is  cashiered  for 
cowardice  or  fraud,  it  shall  be  added  in  the  sentence,  that  the  crime,  name, 
and  place  of  abode,  and  punishment  of  the  delinquent,  be  published  in  the 
newspapers  in  and  about  the  camp,  and  of  the  particular  State  from  which 
the  offender  came,  or  where  he  usually  resides;  after  which  it  shall  be 
deemed  .scandalous  for  an  officer  to  associate  with  him. 

Article  86.  The  commanding  officer  of  any  post  or  detachment,  in  which 
there  shall  not  be  a  number  of  officers  adequate  to  form  a  general  court- 
martial,  shall,  in  cases  which  require  the  cognizance  of  such  a  court,  report 
to  the  commanding  officer  of  the  department,  who  shall  order  a  court  to  be 
assembled  at  the  nearest  post  or  department,  and  the  party  accused,  with 
necessary  witnesses,  to  be  transported  to  the  place  where  the  said  court  shall 
be  assembled. 

Article  87.  No  person  shall  be  sentenced  to  suffer  death  but  by  the  con- 
currence of  two-third.-?  of  the  members  of  a  general  court-martial,  nor  except 
in  the  cases  herein  expressly  mentioned;  nor  shall  more  than  fifty  lashes  be 


038  APPENDIX  E. 

inflicted  ou  any  offender,  at  the  discretion  of  a  conrt-martial;  and  no  officer, 
iion-comuiissioned  officer,  soldier,  or  follower  of  the  Army,  shall  be  tried  a 
second  time  for  the  same  offense. 

Article  88.  Xo  person  shall  be  liable  to  be  tried  and  punished  by  a 
general  court-martial  for  any  offense  Avhich  shall  ajipear  to  have  been  com- 
mitted more  than  two  years  before  the  issuing  of  the  order  for  such  trial, 
unless  the  person,  by  reason  of  having  absented  himself,  or  some  other 
manifest  impediment,  shall  not  have  been  amenable  to  justice  within  that 
period. 

Article  89.  Every  officer  authorized  to  order  a  general  court-martial 
shall  have  power  to  pardon  or  mitigate  any  punishment  ordered  by  such 
court,  except  the  sentence  of  death,  or  of  cashiering  an  officer;  which,  in 
the  cases  where  he  has  authority  (by  Article  65)  to  carry  them  into  execu- 
tion, he  may  suspend,  until  the  pleasure  of  the  President  of  the  United 
States  can  be  know'n;  which  suspension,  together  with  copies  of  the  proceed- 
ings of  the  court-martial,  the  said  officer  shall  immediately  transmit  to  tlie 
President  for  his  determination.  And  the  colonel  or  commanding  officer  of 
the  regiment  or  garrison  where  any  regimental  or  garrison  court-martial 
shall  be  held,  may  pardon  or  mitigate  any  punishment  ordered  by  such 
court  to  be  inflicted. 

Article  90.  Every  judge-advocate,  or  person  officiating  as  such,  at  any 
general  court-martial,  shall  transmit,  with  as  much  expedition  as  the  oppor- 
tunity of  time  and  distance  of  place  can  admit,  the  original  proceedings  and 
sentence  of  such  court-martial  to  the  Secretary  of  War;  which  said  original 
proceedings  and  sentence  shall  be  carefully  kept  and  preserved  in  the  office 
of  said  Secretarv,  to  the  end  that  the  persons  entitled  thereto  may  be 
enabled,  upon  application  to  the  said  office,  to  obtain  copies  thereof. 

The  party  tried  by  any  general  court-martial  shall,  upon  demand  thereof, 
made  by  himself,  or  by  any  person  or  persons  in  his  l)ehalf,  be  entitled  to  a 
copy  of  the  sentence  and  proceedings  of  such  court-martial. 

Article  91.  In  cases  where  the  general,  or  commanding  officer  may  order 
a  court  of  inquiry  to  examine  into  the  nature  of  any  transaction,  accusation, 
or  imputation  against  any  officer  or  soldier,  the  said  court  shall  consist  of 
one  or  more  officers,  not  exceeding  three,  and  a  judge  advocate,  or  other 
Buitable  person,  as  a  recorder,  to  reduce  the  proceedings  and  evidence  to 
writing;  all  of  whom  shall  be  sworn  to  the  faitliful  performance  of  their 
duty.  This  court  shall  have  the  same  power  to  summon  witnesses  as  a  court- 
martial,  and  to  examine  them  on  oath.  But  they  shall  not  give  their  opinion 
on  the  merits  of  the  case,  excepting  they  shall  be  thereto  specially  required. 
The  parties  accused  shall  also  be  permitted  to  cross-examine  and  interrogate 
the  witnesses,  so  as  to  investigate  fully  the  circumstances  in  the  question. 

Article  92.  The  proceedings  of  a  court  of  inquiry  must  be  authenticated 
bv  the  signature  of  the  recorder  and  tlie  president,  antl  delivered  to  the 


AMElilCAy  ARTICLES  OF  1S06.  639 

commanding  officer,  and  the  said  proceedings  may  be  admitted  as  evidenc« 
by  a  court-martial,  in  cases  not  capital,  or  extending  to  the  dismission  of  an 
officer,  })rovided  that  the  circumstances  are  such  that  oral  testimouy  cannot 
be  obtained.  But  as  courts  of  inquiry  may  be  perverted  to  dishonorable 
purposes,  and  may  be  considered  as  engines  of  destruction  to  military  merit, 
in  the  hands  of  weak  and  envious  commandants,  they  are  hereby  prohibited, 
unless  directed  by  the  President  of  the  United  States,  or  demanded  by  the 
accused. 

Article  93.  The  judge  advocate  or  recorder  shall  administer  to  the 
members  the  following  oath : 

"  You  shall  well  and  truly  examine  ami  iii(|uire,  according  to  your  evi- 
dence, into  the  matter  noM'  before  you,  without  partiality,  favor,  affection, 
prejudice,  or  hope  of  reward.     So  help  you  (iod." 

After  which  the  president  shall  administer  to  the  judge  advocate  or 
recorder  the  following  oath: 

"  You,  A.  B.,  do  swear  that  you  will,  according  to  your  best  abilities, 
accurately  and  impartially  record  the  proceedings  of  the  court,  and  the  evi- 
dence to  b.3  given  in  the  case  in  hearing.     So  help  you  God." 

The  witnesses  shall  take  the  same  oath  as  witnesses  sworn  before  a  court- 
martial. 

Article  94.  AVhen  any  commissioned  officer  shall  die  or  be  killed  in  the 
service  of  the  United  States,  the  major  of  the  regiment,  or  the  oflficer  doing 
the  major's  duty  in  his  absence,  or  in  any  post  or  garrison,  the  second  officer 
in  command,  or  the  assistant  military  agent,  shall  immediately  secure  all  his 
effects  or  equipage,  then  in  camp  or  quarters,  and  shall  make  an  inventory 
thereof,  and  forthwith  transmit  the  same  to  the  office  .of  the  Department  of 
War,  to  the  end  that  his  executors  or  administrators  may  receive  the  same. 

Article  95.  When  any  non-commissioned  officer  or  soldier  shall  die,  or 
be  killed  in  the  service  of  the  United  States,  the  then  commanding  officer  of 
the  troop  or  company  shall,  in  the  presence  of  two  other  commissioned 
officers,  take  an  account  of  what  effects  he  died  possessed  of,  above  his  arms 
and  accoutrements,  and  transmit  the  same  to  the  office  of  the  Department 
of  War,  which  said  effects  are  to  be  accounted  for,  and  paid  to  the  represen- 
tatives of  such  deceased  non-commissioned  officer  or  soldier.  And  in  case 
atiy  of  the  officers,  so  authorized  to  take  care  of  the  effects  of  deceased 
officers  and  soldiers,  should,  before  they  have  accounted  to  their  representa- 
tives for  the  same,  have  occasion  to  leave  the  regiment  or  jjost,  by  prefer- 
ment or  otherwise,  they  shall,  before  they  be  permitted  to  quit  the  same, 
deposit  in  the  hands  of  the  commanding  officer,  or  of  the  assistant  military 
aseut,  all  the  effects  of  such  deceased  non-commissioned  officers  and 
soldiers,  in  order  that  the  same  may  be  secured  for,  and  paid  to,  their 
respective  representatives. 

Article  96.  All  officers,  conductors,  gunners,  matrosses,  drivers,  or  other 
persons  whatsoever,  receiving  pay  or  hire  in  the  service  of  the  artillery,  or 


640  APPENDIX  E. 

corps  of  engineers  of  the  United  States,  sliall  be  governed  by  the  aforesaid 
Rales  and  Articles,  and  shall  be  subject  to  be  tried  by  courts-martial,  in  like 
manner  with  the  officers  and  soldiers  of  the  other  troops  in  the  service  of  the 
United  States. 

Article  97.  The  officers  and  soldiers  of  any  troops,  whether  militia  or 
others,  being  mustered  and  in  pay  of  the  United  States,  shall,  at  all  times 
and  in  all  places,  when  joined,  or  acting  in  conjunction  with  the  regular 
forces  of  the  United  States,  be  governed  by  these  rules  and  articles  of  war, 
and  shall  be  subject  to  be  tried  by  courts-martial  in  like  manner  with  the 
officers  and  soldiers  in  the  regular  forces;  save  only  that  such  courts-martial 
shall  be  composed  entirely  of  militia  officers. 

Article  98.  All  officers  serving  by  commission  from  the  authority  of  any 
particular  State,  shall,  on  all  detachments,  courts-martial,  or  other  duty, 
■wherein  they  may  be  employed  in  conjunction  with  the  regular  forces  of  the 
United  States,  take  rank  next  after  all  officers  of  the  like  grade  in  said 
regular  forces,  notwithstanding  the  commissions  of  such  militia  or  State 
officers  may  be  elder  than  the  commissions  of  the  officers  of  the  regular 
forces  of  the  United  States. 

Article  99.  All  crimes  not  capital,  and  all  disorders  and  neglects  which 
officers  and  soldiers  may  be  guilty  of,  to  the  prejudice  of  good  order  and 
military  discipline,  though  not  mentioned  in  the  foregoing  articles  of  war, 
are  to  be  taken  cognizance  of  by  a  general  or  regimental  court-martial, 
according  to  the  nature  and  degree  of  the  offense,  and  be  punished  at  their 
discretion. 

Article  100.  The  President  of  the  United  States  shall  have  power  to 
prescribe  the  uniform  of  the  army. 

Article  101.  The  foregoing  articles  are  to  be  read  and  published,  once  in 
every  six  mouths,  to  every  garrison,  regiment,  troop,  or  company,  mustered, 
or  to  be  mustered,  in  the  service  of  the  United  States,  and  are  to  be  duly 
observed  and  obeyed  by  all  officers  and  soldiers  who  are,  or  shall  be,  in  said 
service. 

Section  2.  And  he  it  further  enacted.  That  in  time  of  war,  all  persons 
not  citizens  of,  or  owing  allegiance  to,  the  United  States  of  America,  who 
shall  be  found  lurking  as  spies  in  or  about  the  fortifications  or  encampments 
of  the  armies  of  the  United  States,  or  any  of  them,  shall  suffer  death, 
according  to  the  law  and  usage  of  nations,  by  sentence  of  a  general  court- 
martial. 

Section  3.  Atid  he  it  further  enacted^  That  the  rules  and  regulations  by 
which  the  armies  of  the  United  States  have  heretofore  been  governed,  and 
the  resolves  of  Congress  thereunto  annexed,  and  respecting  the  same,  shall 
henceforth  be  void  and  of  no  effect,  except  so  far  as  may  relate  to  any  trans- 
actions under  them  prior  to  the  promulgation  of  this  act,  at  the  several  posts 
and  garrisons  respectively,  occupied  by  any  part  of  the  army  of  the  United 
States. 


APPENDIX  F. 

FORMS   OF  CHABGES. 

General  Considerations. — The  subject  of  charges  and  specifications,  and 
the  conditions  to  be  observed  in  their  preparation  and  submission,  liave 
already  been  discussed.  In  the  general  forms  which  follow,  the  several 
offenses  known  to  military  law  are  charged  in  conformity  to  the  Articles  of 
War  to  which  they  relate. 

Charges. — The  charge  proper  is  a  specific  allegation  of  the  vioUition  of  a 
particular  Article  of  War,  and  as  such  may  be  expressed  in  any  form  of 
words  which  will  clearly  and  sufficiently  accomplish  that  purpose.  An 
offense  may  tlierefore  be  legally  charged  as  a  violation  of  a  particular 
Article,  by  number;  as,  for  example,  "  Violation  of  the  21st  Article  of 
War";  or  the  charge  may  be  stated  in  terms  of  the  offense  created  by  the 
Article;  as,  "  Disobedience  of  orders,"  "  Sleeping  on  post,"  and  the  like. 
The  best  form  of  allegation,  however,  results  from  a  combination  of  the  two 
methods  above  described;  as,  "  Disobedience  of  orders,  in  violation  of  the 
21st  Article  of  War";  "  Sleeping  on  post,  in  violation  of  the  39th  Article 
of  War,"  etc.  This  form  is  to  be  preferred  because  hi  some  instances 
several  offenses  are  described  in  a  single  Article,  and  the  mere  allegation  of 
violatiug  the  Article  fails,  in  such  a  case,  to  convey  to  the  accused  precise 
knowledge  of  the  offense  for  which  he  is  to  be  tried,  and  against  which  he 
must  prepare  his  defense.  Charges  are  numbered  serially,  and  in  general 
are  arranged  in  the  order  of  their  importance  or  gravity. 

Specifications. — It  has  been  seen  that  the  specification  should  set  forth 
the  particular  act  or  omission  which  constitutes  an  offense  under  the 
Article  to  which  it  relates.  As  military  offenses  are,  as  a  rule,  strictly 
statutory  in  character,  the  offense  should  be  stated,  as  nearly  as  may  be,  in 
the  words  of  the  Article  violated.  Each  specification  should  set  forth  a 
single  act  or  omission,  provided  that  such  act  or  omission  con.stitutes  a 
complete  offense  uiuler  the  Article  in  question;  an  incomplete  offense  is  in 
general  not  chargeable,  or,  if  triable,  should  be  charged  under  the  oreneral 
terms  of  the  62d  Article.  If  the  offense  has  been  repeated,  or  if  more  than 
one  offense  has  been  committed  under  the  Article  (jis  may  be  the  case  under 
Articles  60,  61,  and  62),  or  if  the  offense  is  a  violation  of  more  than  one 

041 


64:2  APPEyDIX  F. 

Article  (as  of  the  60tli  and  Gist,  or  the  60th  and  G2d  Articles),  each  separate 
offense  should  be  made  the  subject  of  an  independent  specification.  Specifi- 
cations are  also  serially  numbered,  those  under  each  charge  constituting 
separate  series. 

Allegations  of  Time  and  Place. — If  either  time  or  jjlace  constitutes  an 
essential  element  of  the  offense,  it  should  be  specially  alleged  in  the  specifi- 
cation ;  otherwise  they  are  embodied  in  the  final  clause  of  the  specification, 

under  the  form  "  This  at ,  on  the  — th  day  of ,  189 — ;" 

where  these  elements,  or  either  of  them,  are  not  susceptible  of  exact  allegation 

and  proof,  the  form  "  This  at  or  near ,  on  or  about  the  — th  day 

of ,  189 — ,"  may  be  used.     Time  is  always  an  essential  element  to 

the  extent  of  determining  whether  the  offense  falls  within  the  statute  of 
limitations. 

If  the  offense  depends  for  its  criminal  character  or  completeness  upon 
the  existence  or  continuance  of  a  particular  status,  as  of  war  or  jieace,  for 
example,  the  existence  of  the  status  should  be  alleged  in  the  specification ; 
this  is  the  case  with  offenses  under  the  58th  Article,  and  with  the  offenses 
of  forcing  a  safeguard,  being  a  spy,  and  the  like.  Some  offenses,  in  order 
to  be  triable,  must  be  committed  in  "  foreign  parts  "  or  "  in  territory  of  the 
United  States  in  rebellion";  the  doing  of  violence  to  a  person  bringing  pro- 
visions to  the  camp  is  an  example  of  the  former;  forcing  a  safeguard  is  an 
example  of  the  latter. 

Allegations  of  Intent. — Military  offenses,  being  created  by  statute,  the 
particular  statutory  intent  described  in  the  Article,  if  there  be  one,  must  be 
alleged  in  the  specification.  The  enlistments  prohibited  in  the  3d  Article, 
for  example,  must  have  been  "  knowingly  "  made  in  order  to  constitute  an 
offense  under  the  statute.  It  is  similarly  essential  to  the  offenses  described 
in  the  8th  and  14th  Articles  that  they  be  "  knowingly  "  committed;  offenses 
under  the  loth  and  16th  Articles  must  have  been  committed  "  willfully,  or 
through  neglect";  an  officer  quitting  his  post,  on  tender  of  resignation  must 
do  so  "  with  intent  to  remain  permanently  absent  therefrom  "  to  be  triable 
for  the  offense  described  in  the  49th  Article;  and  an  officer  who  refuses  or 
"  willfully  neglects  "  to  deliver  an  offender  to  the  civil  authority,  upon  appli- 
cation duly  made  by  or  in  behalf  of  the  party  injured,  subjects  himself  by 
such  willful  neglect  to  the  penalty  set  forth  in  the  59th  Article. 

If  the  offense  charged  is  a  crime  at  common  law,  the  words  descriptive 
of  the  intent  at  common  law  must  be  alleged  in  the  specification.  In  some 
instances,  however,  as  in  the  offenses  described  in  the  .31st,  34th,  35th,  and 
30th  Articles,  no  statutory  intent  is  set  forth  in  the  Article,  and  none  need 
be  alleged  in  the  specification.  In  other  cases,  while  no  intent  is  embodied 
in  the  Article,  a  particular  intent  is  necessary  to  the  completeness  of  the 
offense,  and,  though  not  set  forth  in  the  specification,  must  be  established  in 
evidence;  such  is  the  case  with  respect  to  the  offense  of  desertion,  the  intent 


FORMS  OF  CHARGES.  ^>-i3 

being  not  to  return;  and  the  offense  of  Jiolding  correspondence  with  the 
enemy  under  the  45th  Article,  and  relieving  the  enemy  with  victuals, 
ammunition,  etc.,  must,  in  order  to  be  complete,  be  proven  to  have  been 
committed  "  unlawfully." 

The  Language  Used. — It  has  been  seen  that  as  military  offenses  are 
statutory  in  character  they  should  in  general  be  stated  and  charged  in  the 
lancruage  used  to  describe  the  offenses  in  the  Articles  which  create  them : 
this  for  the  reason  that  the  intent  of  the  legislature,  in  making  use  of  cer- 
tain words  or  clauses  to  describe  a  criminal  offense,  is  to  restrict  the  opera- 
tion of  the  statute  to  the  particular  acts  or  omissions  therein  made  criminal. 
If,  therefore,  other  and  different  words  be  employed  in  the  preparation  of 
specifications,  the  offense  thus,  alleged  may  differ,  in  some  material  respect, 
from  that  contemplated  by  the  legislature  in  the  enactment  of  the  statute. 

While  no  particular  form  of  words  is  necessary  in  the  description  of  a 
military  offense,  the  language  used  must  be  such  as  to  describe  the  offense 
clearly  and  completely,  as  to  the  elements  which  are  essential  to  its  crim- 
inality, and  no  words  wliich  are  essential  to  such  description  can  be  safely 
omitted.  Care  should  be  taken  to  avoid  redundancy,  and  matter  in  the 
nature  of  evidence  merely  should  be  carefully  excluded.  What  is  known  as 
aro-unientativeness  should  also  be  avoided;  that  is,  the  introduction  of  reason- 
ing,  or  the  drawing  of  conclusions  either  of  fact  or  law,  in  respect  to  the 
facts  alleged  in  tlie  specification. 

In  conclusion,  the  admirable  statement  by  Attorney-General  Gushing 
of  the  conditions  essential  to  the  validity  of  a  military  charge  are  earnestly 
recommended  to  those  whose  duty  it  may  become  to  prepare  charges  and 
specifications  in  the  military  service.  "  Trials  by  court-martial  are  gov- 
erned by  the  nature  of  the  service,  which  demands  intelligible  precision  of 
language,  but  regards  the  substance  of  things  rather  than  their  forms. 
*****  The  most  bald  statement  of  the  facts  alleged  as  constituting  the 
offense,  provided  the  legal  offense  itself  be  distinctively  and  accurately 
described  in  such  terms  of  precision  <is  the  rules  of  military  jurisprudence 
require,  will  be  tenable  in  court-martial  proceedings,  and  will  be  adequate 
srroundwork  for  conviction  and  sentenoe."  ' 

Article  3. 

Charge. — ^faking  a  prohibited  enlistment  (or  muster),  in  violation  of  the 
3d  Article  of  War. 

Specification. — In  that  Gaptain  R I ,  — th  Regiment  of  Gavalry, 

having  been  duly  authorized  to  recruit  for  the  military  service  (or  to  muster 


'  VII.  Opinion-^  of  the  Attorney-Genenil,  603.  "  All  th.-it  is  necessary  in  a  military 
charge  is  that  it  be  sufficiently  clear  to  inform  the  accused  of  the  mililary  offense  for 
which  he  is  to  be  Irioil,  and  to  enable  him  to  prepare  his  defense."  Attorney  GeniMal 
Wivt.  1  Opiu..  286;  Tvtier.  209;  KennetJv.  09. 


644  APPENDIX  F. 

troops  into  the  military  service),  did  knowingly  enlist  (or  muster)  into  the 

military  service  of  the  United  States  one  C D ,  a  minor  under  the 

age  of  sixteen  years  (or  a  minor  over  the  age  of  sixteen  years,  without  the 
written  consent  of  his  parent  or  guardian). 

Or,  did  knowingly  enlist,  etc,  E F ,  an  intoxicated  person; 

Or,  did  knowingly  enlist,  etc.,  G H ,  an  insane  person; 

Or,  did  knowingly  enlist,  etc.,  I J ,  a  deserter  from  the  military 

(or  naval)  service  of  the  United  States; 

Or,  did  knowingly  enlist,  etc.,  K L ,  who  had  been  convicted 

of  an  infamous  offense,  to  wit,  the  offense  of  perjury;  the  said  enlistment 
being  prohibited  by  law. 

This  at , ,  on  the  — th  day  of ,  189 — . 

Article  5. 

Charge. — Mustering  as  a  soldier  a  person  not  a  soldier,  in  violation  of 
the  5tli  Article  of  War. 

Specification.  —  In   that    Captain    H G ,   — th   Eegiment   of 

Cavalry,  U.  S.  Army,  having  been  duly  authorized  to  muster  Company  E, 
— th  Regiment  of  Cavalry,  for  the  month  of  June,  189 —  (or  "  to  muster- 
in  the  — th  Regiment  of  Infantry,  Illinois  Volunteers,  or  militia),  did 
unlawfully  muster  one  S F ,  a  civilian,  as  a  musician  in  said  com- 
pany, well  knowing  that  the  said  S F was  not  a  duly  enlisted 

soldier  at  the  time  of  said  muster. 

This  at , on  the  — th  day  of ,  189 — . 

Article  6. 

Charge. — Receiving  money  by  way  of  gratification  at  muster,  in  violation 
of  the  0th  Article  of  War. 

Specification.  —  In   that    Captain    G H ,   — th    Regiment   of 

Artillery,  IJ.  S.  Army,  having  been  duly  authorized  to  muster  Company  D, 
— th  Regiment  of  Infantry  for  the  month  of  June,  189 — ,  and  having 
mustered  the  said  company  in  pursuance  of  such  authority,  did  receive  from 

Captain  T Y ,  commanding  said  company,  a  sum  of  money,  to  wit, 

one  hundred  dollars  (8100.00),  for  mustering  said  company. 

This  at  Fort , ,  on  the  — th  day  of ,  189 — . 

Article  7. 

Charge. — Omitting  to  send  a  monthly  return  of  his  company,  in  viola- 
tion of  the  7th  Article  of  War. 

Specification. — In  that  First  Lieutenant  G J ,  — th  Regiment  of 

Artillery,  U.  S.  Army,  being  in  command  of  Light  Battery  F,  — th  Regi- 
ment of  Artillery,  U.   S.  Army,  did,  knowingly  and  willfully  (or  through 


FORMS  OF  CHAIiGES.  645 

neglect)  fail  and  omit  to  prepare  and  send  to  the  Department  of  War  a 
monthly  return  of  the  said  light  battery  for  the  month  of  June,  18;> — , 
This  at  Fort , . 

Article  8. 

Charge. — Making  a  false  return,  in  violation'  of  the  8th  Article  of  War. 

Specification. — In  that  First  Lieutenant  'I' Y ,  — d  Regiment  of 

Artillery,  being  in  command  of  Light  Battery  G,  — d  Regiment  of  Artillery, 
U,  8.  Army,  and  being  refjuired,  as  snch  commanding  officer,  to  make  a 
quarterly  return  of  quartermaster's  stores  to  the  Quartermaster  General  of 
the  Army,  an  officer  authorized  by  law  and  by  the  General  Regulations  of 
the  Army,  to  call  for  such  returns  of  stores,  furnished  the  said  Lieutenant 
Y for  use  in  the  military  service,  did  submit  to  the  said  Quartermaster- 
General  a  return  of  quartermaster's  stores  for  the  quarter  ending  on  the  ;30th 
day  of  June,  189 — ,  setting  forth  that  tliere  were  on  hand  in  the  said  Light 
Battery  G  eighty-two  public  horses,  which  return  was  in  part  false,  and  was 

well  known  by  the  said  Lieutenant  Y^ to  be  false  in  part,  in  that  there 

were  but  eighty  public  horses  on  hand  at  the  date  above  specified. 

This  at , ,  on  the  — th  day  of ,  189—. 

Article  13. 

Charge, — Signing  a  false  certificate,  in  violation  of  the  13th  Article  of 
War. 

Specification. — In  that  Captain  A D- ,  commanding  Company  G, 

— th  Reginient  of  Infantry,  U.  S.  Army,  did  sigTi  a  certificate  attached  to 
and  forming  a  part  of  the  muster-roll  of  the  said  company  for  the  month  of 

-,  18 — ,  the  said  certificate  being  to  the  effect  that  (here  state  the 

contents  of  the  certificate),  which  certificate  was  false  (or  in  part  false),  in 
that  (here  set  forth  the  particulars  of  the  false  certificate). 

This  at , . 

Article  14. 

Charge. — flaking  a  false  muster,  in  violation  of  the  14th  Article  of  War. 

Specification.— In  tliat  Major  J T ,  — th  Regiment  of , 

U.  S.  Army,  having  been  duly  appointed  to  muster  the  troops  stationed  at 

Fort ,  ,  for  the  month  of  February,  189 — ,  did  knowingly 

and  falsely  muster  one  F II ,  a  civilian,  as  an  artificer  of  Company 

G,  — th  Regiment  of  Infantry,  U.  S.  Army,  he,  the  said  Major  J T -, 

well  knowing  that  the  said  F 11 ,  was  not  a  member  of  the  said 

company  (or  "  of  the  military  establishment  ").' 

This  at  Fort , . 


'This  offense  in;iy  be  cominiited   by  the  officer  whose  coniinaiul   is  presented   for 
muster,  and  by  whom  or  under  whose  direclioii  the  muster-rolls  have  been  prepared 
as  well  as  by  the  musterinir  officer,  as  indicated  in  the  form  of  charge  above  given      Iq 


046  APPEyDIX  F. 

Article  15. 

Charge. — Suffering  military  stores  to  be  damaged,  in  violation  of  the 
15th  Article  of  War. 

Specification. — In  that  Captain  D T ,  Commissary  of  Subsist- 
ence, U.  S,  Army,  Depot  Commissary  of  Subsistence  at , , 

being  accountable  for  a  quantity  of  subsistence  stores  and  supplies,  furnished 
for  use  in  the  military  service,  did  willfully  fail  and  omit  to  cause  the  said 
stores  and  supplies  to  be  adequately  protected  from  the  weather  and, 
through  such  neglect,  did  suffer  a  large  quantity  of  the  said  stores,  to  wit, 
sixty-two  (62)  sacks  of  flour  and  twenty-seven  (27)  sacks  of  corn-meal  to 
be  spoiled  (or  damaged)  by  the  elements,  thereby  causing  a  pecuniary  loss 
to  the  United  States  to  the  amount  of dollars. 

rphis  at , ,  on  or  about  the  — th  day  of ,  189 — . 

Aeticle  16. 
(selling  ammunition,  etc.) 

Charge. — Selling  ammunition,  in  violation  of  the  16th  Article  of  War. 

Specification.— In  that  Private  Y T ,  Troop  H,  — th  Regiment 

of  Cavalry,  U.  S.  Army,  having  had  delivered  to  him  a  quantity  of  ammu- 
nition for  use  in  the  military  service,  did  unlawfully  and  without  authority 
sell  a  portion  of  the  same,  to  wit,  one  liundred  and  fifty  rounds  of  ammuni- 
tion for  the  Colt's  revolver,  model  of  1804,  for  whicli  Captain  W H , 

— th  Regiment  of  Cavalry,  was  responsible.' 

This  at , ,  on  the  — th  day  of ,  189 — . 

Article  16. 

(wasting    ammunition,    ETC.) 

Charge. — Wasting  ammunition,  in  violation  of  the  16th  Article  of  War. 

Specification.— In  that  Sergeant  H R ,  Troop  I),  — th  Regiment 

of  Cavalry,  U.  S.  Army,  having  had  delivered  to  him  a  quantity  of  ammu- 
nition for  use  in  the  military  service,  did  willfully  (or  through  neglect) 
waste  a  portion  of  the  same,  to  wit,  forty-eight  rounds  of  anmiunition  for 

such  a  case  the  specification  should  take  Ihe  following  form:  "In  that  Captain 

Y .  commanding  Company  E,  — th  Regiment  of  Infanlry,  U.  S.  Army   did  prepare 

or  cause  to  be  prepared,  and  did  sign  and  submit  U)  the  mustering  officer,  Major  F. 

D ,  — th  Regiment  of  Cavalry,  a  muster-roll  of  the  said  Company  E,  upon  which  Die 

name  of  A B was  borne  as  a  musician,  which  entry  was  false,  and  was  well  known 

by  the  said  Captain  T Y to  be  false,  in  that  the  said  A B was  not  a  musi- 
cian in  the  said  Company  E,  but  a  civilian,  not  connected  with  the  military  service. 

'  The  offense  des  iil)ed  in  this  Article  is  susceptible  of  being  charged  under  the 
more  general  terms  of  the  ninth  (;l:iuse  of  Article  60.  To  bring  an  offense  within  the 
scope  of  Article  16  the  ammunition  sold  must  have  been  issued  to  the  soldier  for  use  lu 
the  military  service,  as  a  part  of  his  equipment  for  service  in  garrison  or  m  the  field. 
See  notes  to  Article  60,  post. 


FORMS   OF  rilARGES.  ^147 

tlie  U.  S.  in;i;^Mzinc  curbine,  iiKj'icl  oi  IB'.Mi  by  lirin^^  it  iiway  (or  \)\  caf^ting 
it  away,  at  drill,  or  on  the  inarcl),  etc.),  without  orders  or  authority  for 
such  expenditure  (or  for  such  disposition)  of  tlie  same. 

This  at  Camp , ,  on  the  — th  day  of ,  lb9 — . 

Aktki.i:   17. 
(selling  clothing,  etc.)    . 

Charge. — Selling  clotliing,  in  violation  of  the  17th  Article  of  War. 

Specification. — In  that  Private  A B ,  Company  F,  — th  Kegi- 

ment  of  Infantry,  U.  S.  Army,  did  sell  the  following  articles  of  uniform 
clothing  issued  to  him,  for  use  in  the  military  service,  viz.:  one  forage-cap, 

value  % ;   one  woolen  blanket,   value  % ;   one  campaign  hat, 

value  $ ;  total  value  of  articles  sold,  % . 

This  at , ,  on  the  — th  day  of ,  189 — . 

AiiTK'Li:  17. 

(losing    or   spoiling    arms,    clothing,    ETC.,    THROUGH    NEGLECT.) 

Charge. — Tiosing  accoutrements,  in  violation  of  the  17th  Article  of  War. 
Specification. — In  that  Private  C D ,  Company  F,  — th  Regi- 
ment of  Infantry,  U.   S.  Army,  did,  through  neglect,  lose  (or  spoil)  the 
following  articles  (of  clothing  or  accoutrements)   issued  to  him  for  use  in 

the  military  service,  viz. :  one  pistol-holster,  value  I ;  one  sabre-belt, 

value  I ;  total  value  of  articles  lost  (or  spoiled),  8 . 

This  at  • , ,  on  the  — th  day  of ,  ISO- 
Article  18. 
(laying  a  duty  or  imposition.) 

Charge. — Laying  an  imposition,  in  violation  of  the  18th  Article  of  War. 

Specification.— In  that  Major  T Y ,  — th  Kegimcnt  of  Artillery, 

U.  S.  Army,  being  in  command  of  the  post  of , ,  diil,  with- 
out authority  and  for  his  private  advantage,  require  one  K H ,  a 

civilian  engaged  in  bringing  fruit  and  vegetables  into  the  said  post,  for  the 

use  of  the  soldiers  serving  thereat,  to  pay  over  to  him,  the  said  ^lajor  'J' 

Y ,  a  sum  of  money,  to  wit,  twenty-five  dollars  ($"25. 00),  for  the  privi- 

leo-e  of  bringing  said  articles  into  the  said  post  for  the  use  of  the  soldiers 
constituting  the  garrison  of  the  same.' 

This  at , ,  on  the  — th  day  of ,  189—. 


'  This  Article  contemplates  two  distinft  offenses:  (1)  Laying  a  duly  or  impcsition 
>ipoii  the  hringivq  in  (if  victiuils.  etc.;  (2)  Bcinij  interested  in  the  sale  of  provisions,  and 
ilie  like.  The  tirst  offense  may  be  comniitt<(i  by  a  coinniandiusr  officer  who  wiihont 
^iioper  authority  lays  a  duty  or  imposition  upon  articles  of  the  kind  described  whi(  h 
are  brouirht  into  a  cari'ison  for  the  use  of  the  soldiers,  and  it  is  not  necessary  to  allege  or 


648  APPENDIX  F. 

Article  18. 

(being    interested    IX    THE    SALE    OF    ARTICLES.) 

Charge. — Being  interested  in  tlie  sale  of  liquors,  in  violation  of  the  18th 
Article  of  War. 

Specification.— In  that  Captain  B G ,  — th  Regiment  of  Infan- 
try, U.  S.  Army,  commanding  Fort , ,  did  exact  and  receive 

from  one  S T ,  a  civilian  (or  from  a  person,  or  persons,  acting  in 

his  behalf),  a  sum  of  money,  to  wit,  one  hundred  and  ten  dollars  ($110.00), 

in  consideration  of  his  having  allowed  (or  allowing)  the  said  S T 

(or  persons  acting  in  his  interest  and  behalf)  to  bring  in  and  sell  wine  and 
beer  for  the  use  of  the  soldiers  constituting  the  garrison  of  the  same. 

This  at ,  ,  on  the  — th  day  of ,  189—. 

Article  19. 

Charge. — Using  disrespectful  words  against  the  President  of  the  United 

States. 

Specification. — In  that  Major  R T ,  — th  Regiment  of  Cavalry, 

U.  S.  Army,  did  publicly  make  use  of  the  following  disrespectful  words 
against  the  President  of  the  United  States,  to  wit  (here  insert  the  language 
used,  exactly  as  uttered,  if  printed  or  published,  otherwise  in  substance,  but 
with  sufficient  precision  to  enable  the  court  to  determine  its  character). 

This  at , ,  on  the  — th  day  of ,  189 — . 

Article  20. 

Charge. — Disrespectful  behavior  toward  his  commanding  officer,  in 
violation  of  the  20th  Article  of  War. 

Specification. — In  that  Captain  T Y ,  — th  Regiment  of  Infan- 
try, U.  S.  Army,  did  behave  himself  disrespectfully  toward  his  commanding 

officer,  Colonel  II W ,  — th  Regiment  of  U.  S.  Infantry,  by  saying 

to  him  (here  insert  the  disrespectful  language — the  exact  words  employed, 
if  possible,  otherwise  the  substance  of  the  language  used.  If  the  disrespect 
consists  in  words  or  utterances,  not  addressed  to  the  commanding  officer  of 
the  accused,  but  of  words  used  about  or  referring  to  such  commanding 
officer,  the  specification  should  be  correspondingly  modified  and  should  read 
"by  saying  about  him,"  or  "did  make  use  of  the  following  language  in 
referring  to  him,"  etc.). 

prove  that  such  articles  were  brought  in  for  the  purpose  of  being  sold,  or  that  they 
were  sold  or  otherwise  disposed  of.  The  second  offense  consists  in  being  interested  in 
the  sale  of  the  victuals,  liquors,  or  otlier  necessaries  of  life  thus  brought  into  a  post, 
garrison,  or  camp  for  the  use  of  llie  troops  of  the  United  States. 


FORMS  OF  CHARGES.  64:9 

Or,  by  addressing  to  him  the  following  communication  in  writing  (here 
insert  the  written  communication). 

Or,  by  publishing  in  the ,  a  newspaper  published  in , 

,    the    following    article,    to   wit    (here    set    forth   the    article   as 

published).' 

This  at , ,  on  the  — th  day  of ,  189—. 

Article  21. 
(striking  a  superior  officer.) 

Charge. — Striking  his  superior  officer,  in  violation  of  the  21st  Article  o^ 
War. 

Specification.— In  that  Private  W M ,  Company  F,  — th  Regi- 
ment of  Cavalry,  did  strike  his  superior  officer,  Captain  C B ,  — th 

Regiment  of  Cavalry,  with  :  (here  set  forth,  fully,  the  circumstances 

of  the  assault,  describing  the  weapon  or  instrument  used  in  inflicting  the 
injury;  as  with  the  fist,  or  with  a  stick,  club,  firearm,  sword,  knife,  bayonet, 
etc.,  together  with  the  location  of  the  injury,  and  in  an  important  case  the 
amount  of  bodily  harm  inflicted,  as  causing  death  or  the  like.  Should  the 
striking  be  accompanied  by  abusive,  threatening,  or  insulting  language,  such 
language  should  be  embodied  in  the  specification,  preceded  by  the  words 
"  which  action  was  accompanied  by  most  abusive,"  or  "  most  insulting,"  or 

*'  highly  threatening  "  "  language,"  etc.).     The  said  Captain  C B 

being:  at  the  time  in  the  execution  of  his  office. 

This  at , ,  on  the  — th  day  of ,  189 — . 

Article  21. 
(drawing  or  lifting  a  weapon.) 

Charge. — 'Drawing  a  sabre  against  his  superior,  in  violation  of  the  2l8t 
Article  of  War. 

Specification. — In  that  Private  R G ,  Troop  G,  — th  Regiment 

of  Cavalry,  U.  S.  Army,  did  draw  his  sabre  and  did  raise  the  same  against 

his  superior  officer,  Lieutenant  W M ,  — d  Regiment  of  Cavalry, 

U.  S.  Army,  the  said   Lieutenant  W M being  at  the  time  in  the 

execution  of  his  office.* 

This  at ,  ,  on  the  — th  day  of ,  189—. 

'  Where  the  disrespectful  conduct  consists  in  behavior  only,  the  particular  acts  or 
omissions  constituting:  such  behavior  are  to  be  fully  set  forth  and  described. 

•  Tliree  otTenses  involvinir  either  actual  or  intended  violence  are  described  and 
created  in  this  Article:  (1)  Striking  a  superior  officer;  (2)  Drawing  or  lifting  up  a  weapon 
against  him;  (3)  Offering  violence  agaiHst  him.  The  offenses  thus  created  have  a  single 
element  in  common — the  otficer  against  whom  the  violence  is  directed  must  be  "  in  the 
execution  of  his  office" — a  status  in  general  eijuivalent  to  that  of  being  "on  duty,"  in 
the  ordinary  acceptation  of  that  term^     The  tirst  of  the  offenses  above  named,  that  of 


^">50  APPENDIX  F. 

Article  21. 
(offering  violence  to  superior.) 

Charge. — Offering  violence  to  his  superior,  in  violation  of  the  2l6t 
Article  of  War. 

Specification.— In  that  Private  R T ,  Company  E,  — th  Regi- 
ment of  Infantry,  U.  S.  Army,  did  offer  violence  to  his  superior.  Lieutenant 

H G ,  — th  Regiment  of  Infantry,  the  said  Lieutenant  H G 

being  in  the  execution  of  his  office,  by  (here  set  forth  the  circumstances  of 
the  assault  or  offer  of  violence ;  as,  by  attempting  to  strike  the  superior, 
pointing  a  firearm,  or  shaking  the  fist  at  him,  accompanied  by  threats  or 
menaces;  attempting  to  interfere  with  or  obstruct  his  movements,  or 
impeding  or  hindering  him  in  the  performance  of  his  duty.  If  the  offer  to 
do  violence  be  accompanied  by  threatening,  insulting,  or  abusive  language, 
the  fact  that  such  language  was  used  should  be  embodied  in  the  specifica- 
tion, preceded  by  the  words  "  which  action  was  accompanied  by  threaten- 
ing or  highly  abusive  language";  if  specific  threats  were  employed,  they 
should  be  incorporated  in  the  specification,  the  exact  language  used  being 
stated,  or  its  substance  set  forth  with  sufficient  accuracy  to  enable  the  court 
to  determine  its  character  and  importance  as  an  element  of  the  offense).' 

This  at , ,  on  the  — th  day  of ,  189—. 

Article  21. 
(disobedience  of  verbal  order.) 

Charge. — Disobedience  of  orders,  in  violation  of  the  21st  Article  of  War. 

Specification. — In  that  Private  T Y ,  Company  G,  — th  Regi- 
ment of  Infantry,  U.  S.  Army,  having  received  a  lawful  command  from  his 
superior  officer,  Second  Lieutenant  K T ,  — th  Regiment  of  Infan- 
try, to  (here  insert  order  exactly  as  given  or  transmitted,  or  in  substance), 
did  willfully  disobey  the  said  order. 

This  at , ,  on  the  — th  day  of ,  189 — . 

striking  a  superior  ofBcer,  corresponds  to  the  criminal  offense  of  "assault  and  battery," 
and  it  is  essential  to  its  existence  that  actual  violence,  it  matters  not  bow  slight,  should 
be  inflicted.  The  second  constitutes  a  particular  form  of  "  assault  "  as  that  term  is  known 
to  the  common  law  ;  tliat  is,  an  offer  of  violence  which  stops  short  of  the  actual  in- 
fliction of  physical  injury.  Wliile  it  was  pi-obahly  contemplaled  in  the  franiini:  of  this 
Article  that  the  "weapons"  used  would  be  those  appropriate  to,  or  such  us  are  com- 
monly used  in  the  military  service,  it  is  sufficient  to  constitute  an  offense  under  this 
clause  of  the  Article  if  any  weapon,  of  whatever  character,  be  drawn  or  lifted  up  against 
a  superior  officer.  The  third  offense,  that  of  offering  violence  to  a  superior  ofiicer,  is 
more  general  in  character  than  that  last  described,  and  includes  all  "assaults,"  techni- 
cally speaking;  that  is,  all  attempts  to  do  violence,  of  whatever  character,  which  fall  short 
of  the  actual  infliction  of  physical  injury.  While,  as  has  been  seen,  mere  abusive  words 
do  not  of  themselves  constitute  an  assault  or  offer  of  violence,  under  the  terms  of  the 
Article,  language  of  a  threatening  or  menacing  character,  if  accompanied  by  a  present 
capacity  and  intention  to  carry  the  threats  or  menaces  into  effect,  is  chargeable  under 
the  Article  equally  with  other  offers  of  violence. 
'  See  note  to  preceding  form. 


FORMS  OF  CUAUGES.  651 

Article  21. 
(disohediekce  of  written  order.) 

Charge. — Disobedience  of  orders,  in  violation  of  the  21st  Article  of  War. 

Specification.— In  that  Captain  G II ,  — d  Regiment  of  Cavalry, 

U.    S.    Army,    liaviiig   received   from  liis  superior  oflicer,    Colonel   T 

R ,  — d  Regiment  of  Cavalry,  a  lawful  command  in  writing  in  the  fol- 
lowing words  and  figures,  to  wit  (here  insert  the  order  in  writing),  did 
willfully  disobey  the  same. 

This  at , ,  on  the  — th  day  of ,  189—. 

Article  22. 
(causing  a  mutiny.) 

Charge. — Causing  a  mutiny,  in  violation  of  the  22d  Article  of  "War. 

Specification. — In  that  Sergeant  J T^ ,  Troop  L,  — th  Regiment 

of  Cavalry,  U.  S.   Army,  being  present  with  his  troop,  did  begin,  excite^ 

cause,  and  join  in  a  mutiny  against  the  authority  of  Captain  II J , 

— th  Regiment  of  Cavalry,  commanding  the  said  troop,  by  placing  himself 
at  the  head  of  a  portion  of  the  said  troop,  and  seizing,  or  causing  to  be 

seized  and  unlawfully  imprisoned  or  confined,  the  person  of  Captain  11 

J ,  commanding  the  said  Troop  L,  — th  Regiment  of  Cavalry. 

This  on  the  Xorth  Platte  River,  near  Sidney,  Nebraska,  on  the  — th 
day  of ,  189—. 

Article  22. 

(joining  in  a  mutiny.)' 

Charge. — Joining  in  a  mutiny,  in  violation  of  the  22d  Article  of  War. 

Specification. — In  that  Sergeant  T R ,  Corporal  Y II , 

Troop  L,  — th  Regiment  of  Cavalry,  U.  S.  Army,  Private  E T , 

Troop  L,  — th  Regiment  of  Cavalry,  U.  S.  Army,  Private  R I , 

'  Where  a  single  oflfeuse  is  committed  by  several  persons,  as  principals  or  accissories, 
with  a  joint  intent  and  a  common  pnrpose,  the  offenders  in  their  several  degrees  may  be 
joined  in  the  chariics  and  specitications,  and  may  he  jointly  tried.  The  words  necessary 
to  accomplish  such  joinder  in  the  several  allegations  of  the  specitications  are  "  thev 
and  each  of  them  "—as  "  that  A.  B.,  C.  D.,  E.  F..  G.  H.,  1.  J.,  and  each  of  them,  did," 
etc.:  in  later  references  to  the  joint  accused  in  the  specitication  tliey  may  be  referred 
to  as  "they  and  each  of  ihem"or"them  and  each  of  them."  The  findings  and  sen- 
tence sho\ild  also  l)e  similarly  framed;  as.  for  example,  that  "tlie  court,  having  maturely 
considered  tlie  evidence  adduced,  finds  the  accused  A.  B.,  C.  D.,  E.  F.,  and  G.  II.,  and 
each  of  them,  as  follows:  Of  the  first  specification,  guilty,"  etc.;  and  in  the  sentence 
"and  the  court  does  therefore  sentence  them  [wiiere  the  sentence  is  the  same  in  each 
case]  and  each  of  them  to  be," etc.  If  the  sentences  are  not  the  same  in  all  cases,  each  of 
the  accused  should  be  awarded  a  separate  sentence.* 

*  Accnsed  p<'rsoiis  will  not  he  joined  In  ttic  snnie  charfrf,  nor  tried  on  joint  charpes,  unless  for  con- 
cert of  action  in  an  oflfeuse.  T<>  warnnif  tlif  j;>iiiintr  of  several  persons  in  the  same  eliarpe,  the  offense 
nmst  be  sncli  as  requires  for  ilsconiniission  aoonitiination.  and  must  liave  been  coiumitled  in  concert, 
in  pursuance  of  a  common  intent.    Manual  for  Courts-martial,  10,  par.  C. 


652  AFPEMJIX  F. 

Troop  L,  — th  Regiment  of  Cavalry,  etc.  (liere  name  all  participants  in  the 
mutinous  act),  and  each  of  them,  while  engaged  in  the  pursuit  of  hostile 

Indians,  did  join  in  a  mutiny  against  tlie  authority  of  Captain  H J , 

— th  Regiment  of  Cavalry,  commanding  Troop  L,  — th  Regiment  of 
Cavalry,  U.  S.  Army,  and  did  seize  or  assist  in  seizing,  and  did  unlawfully 
confine  and  restrain,  or  assist  in  confining  and  restraining,  the  person  of 

Captain  II J ,  — th  Regiment  of  Cavalry,  the  commanding  officer 

of  the  said  troop. 

This  at ,  ,  on  the  — th  day  of ,  189 — • 

Article  23. 

Charge. — Failing  to  suppress  a  mutiny,  in  violation  of  the  23d  Article 
of  War. 

Specification. — In  that  Sergeant  E T ,  Troop  C,  — th  Regiment 

of  Cavalry,  being  in  charge  of  the  herd  guard  of  the  said  troop,  and  being 

present  at  a  mutiny  against  the  authority  of  Captain  H J ,  — th 

Regiment  of  Cavalry,  commanding  said  troop,  did  fail  to  use  his  utmost 
endeavor  to  suppress  the  same,  but  did  assemble  the  herd  guard  under  his 
command  and  did  cause  the  same  to  quit  the  place  and  vicinity  of  the  said 
mutiny  by  conducting  the  herd  under  his  charge  to  the  grazing-grounds  of 
the  said  troop. 

This  at ,  ,  on  the  — th  day  of ,  189 — . 

,  Article  24. 

Charge. — Disobedience  of  orders,  in  violation  of  the  24th  Article  of  "War. 

Specification. — In  that  First  Lieutenant  T Y ,  — d  Regiment  of 

Infantry,  U.  S.  Army,  being  present  at  and  participating  in  a  serious  fray 
in  the  barracks  of  Company  D,  — d  Regiment  of  Infantry,  and  having 
utterly  failed  and  neglected  to  use  the  authority  vested  in  him  by  law  for 
the  suppression  of  said  fray,  and  having,  in  consequence  of  such  participation 
in  said  fray,  been  ordered  to  his  quarters  in  arrest  by  Second  Lieutenant 

E J ,  — th  Regiment  of  Cavalry,  did  refuse  to  obey  such  lawful 

order  (or  to  observe  the  arrest  thus  lawfully  imposed.)  ' 

This  at , ,  on  the  — th  day  of ,  189 — . 

'  A  somewhat  extreme  case  is  indicated  in  the  form  of  charge  above  given.  The 
operation  of  the  24th  Article  is  to  eliminate,  in  a  case  of  emertrency,  all  distinctions  of 
rank  among  officers  in  respect  to  the  duty  of  parting  and  quellinir  quarrels,  frays,  and 
disorders,  and  to  confer  upon  all  officers,  commissioned  and  non  commissioned,  the  power 
to  arrest  officers,  whicli  is  in  all  other  cases  restricted  by  the  operation  of  the  65th 
Article  to  commanding  officers  alone.  The  24th  Article,  therefore,  confers  upon  a 
senior  the  right  to  arrest  an  officer  of  inferior  rank  and,  in  a  proper  case  of  emergency, 
operates  to  authorize  an  inferior  to  place  an  officer  of  superior  rank  in  arrest.  See,  also. 
Article  24.  in  the  chapter  entitled  TuE  Auticles  of  War. 

The  24th  Article,  while  it  provides  a  method  of  parting  frays  and  quarrels  and  of 
repressing  di.sorders,  does  not  give  to  such  acts  the  character  of  specific  offenses  or  confer 


FORMS  OF  CHARGES.  C53 

Article  25. 

This  Article  forbids,  in  express  terms,  the  use  of  reproachful  or  insulting 
speeches  and  gestures,  and  provides  a  method  of  procedure  with  a  view  to 
put  an  instant  end  to  the  conduct  thus  prohibited.  Tlie  Article  stops  short, 
however,  of  creating  a  separate  offense  which  shall  be  chargeaVjle  as  a  viola- 
tion of  this  particular  Article  of  War.  Conduct  of  the  character  wliich  is 
prohibited  in  the  Article  will,  if  it  be  regarded  as  prejudicial  to  military 
discipline,  be  chargeable  under  the  62d  Article.' 


Article  26.' 
(sending  a  challenge.) 

Charge. — Sending  a  challenge  to  fight  a  duel,  in  violation  of  the  2Gth 
Article  of  War. 

Specification. — In  that  Captain  A B ,  — th  Eegiment  of  Infantry, 

U.  S.  Army,  did  send  a  challenge  to  fight  a  duel  to  Lieutenant  C 

n ,  — d  Regiment  of  Artillery,  U.  S.  Army ;  the  said  challenge  being  in 

substance  a  verbal  invitation  to  repair  to , ,  on  a  day  named, 

for  the  purpose  of  giving  to  him,  the  said  Captain  A B ,  satisfaction 

for  an  injury  alleged  to  have  been  received  at  the  hands  of  the  said  Lieu- 
tenant C II ;  the  said  invitation  being  conveyed  to  the  said  Lieuten- 
ant C H by  Lieutenant  H M ,  of  the  Corps  of  Engineers. 

This  at  or  near , ,  on  or  about  the  — th  day  of , 

189—. 

Or,  if  the  challenge  be  in  writing,  the  following  form    may  be  used: 

"did  send,  or  cause  to  be  sent,  to  Lieutenant  H C ,  — d  Regiment 

of  Artillery,  U.  S.  Army,  a  challenge,  in  writing,  to  fight  a  duel,  in  the 
following  words  and  figures,  to  wit: ''     (Here  insert  the  written  challenge.) 

This  at ,  .  on  the  — th  day  of ,  189 — . 


jurisdicfion  for  their  trial  upon  any  one  of  the  several  military  tribunals.  The  offense 
of  creatinsr,  inciting,  or  takini:  part  in  a  quarrel,  frav.  or  disorder,  bcinc;  prejudicial  to 
military  discipline,  is  charpeable  as  such  under  the  60d  Article.  The  last  clause  of  ths 
Article,  however,  creates  a  specific  offense  of  disobedience,  which  is  triable  under  the 
24th  Article. 

'  For  forms  of  chareps,  etc.    see  Article  62. 

'  The  offense  of  fichtinc  a  duel  is  neither  specificallv  described  nor  explicitly  made 
punishable  in  the  Articles  of  "War  The  offense  committed  by  those  who  ennasre  in  a 
duel  will  be  determined  by  tlie  circiimstaiices.  and  to  some  extent  by  the  consequences, 
in  each  case.  Participation  in  a  voluntnrv  ficrht  or  duel,  beine  conduct  prejudicial  to 
military  discipline,  is  chnrtreable  under  the  fiOd  Article.  If  deatli  results,  the  offense  is 
by  statute  in  most  jurisdictions  either  murder  or  manslaui^hter.  Murder  being  a  capital 
oiEFense  is  not  triable  under  the  6'2d  Article,  and  tlio  offense,  if  chareeable  as  such,  can 
only  be  tried  by  a  civil  court  of  compettwt  jurisdicticm.  In  time  of  war  duelling,  if  it 
results  in  homicide,  is  chargeable  under  the  58th  Article. 


651  APPENDIX  F. 

Article  26. 

Charge. — Accepting  a  challenge  to  fight  a  duel,  in  violation  of  the  26th 
Article  of  War. 

Specification.—  In  that  Captain  H E ,  — d  Regiment  of  Artillery, 

U.  S.  Army,  having  been  challenged  by  Lieutenant  R G ,  — th 

Rec^iment  of  Artillery,  to  fight  a  duel  (or,  having  received  a  challenge  in 
writing  to  figlit  a  duel,  in  the  following  words  and  figures,  to  wit:  here 
insert  the  written  challenge),  did  accept  the  same,  in  a  verbal  message  sent  to 

the  said  Lieutenant  R G by  the  hands  of  Captain  T C , 

— d  Regiment  of  Cavalry  (or,  did  accept  the  same,  by  sending  or  causing  to 

be  sent  to  the  said  Captain  G an  acceptance  of  the  same,  in  writing,  in 

the  following  words  and  figures,  to  wit:  here  insert  the  written  acceptance). 

This  at ,  ,  on  the  — th  day  of ,  189 — . 

Article  27. 

Charge.— Suffering  a  person  to  go  forth  to  fight  a  duel,  in  violation  of 

the  2rth  Article  of  War. 

Specification.— In  that  Captain  C D ,  — th  Regiment  of  Infan- 
try, being  post  officer  of  the  day  at  Fort ,  ,  on  the  — th  day 

of .'^.  189—,  and,  as  such  officer  of  the  day,  being  the  commander  of  the 

guard  at  the  said  Eort ,  did  permit  Lieutenant  T H^,  — d 

Regiment  of  Artillery.  IT.  S.  Army,  to  go  forth  from  the  said  post  of 
_J^ ,  ,  for  the  purpose  of  fighting  a  duel. 

This  at ,  ,  on  the  —  day  of ,  189—. 

Article  28. 

Charge. -Upbraiding  another  officer  for  refusing  a  challenge,  in  violation 

of  the  28th  Article  of  War.  _  <.^       , 

Specification.-In  that  Captain  J S ,  -th  Regiment  of  Cavalry, 

U.  S.  Army,  did  upbraid  and  reproach  Lieutenant  T A  ,  — d  Regi- 
ment of  Artillery,  for  refusing  to  accept  a  challenge  to  fight  a  duel.  (If  the 
communication  be  in  writing  it  should  be  inserted  as  indicated  in  the  forms 
given  under  the  26th  and  27th  Articles  of  War.) 

This  at  Fort ,  ,  on  the  — th  day  of ,  189-. 

Article  31. 

Charge  -Lvin^r  out  of  quarters,  in  violation  of  the  31st  Article  of  War. 
Specification.-Li  that  Sergeant  G S ,  Company  G,  -th  Regi- 
ment of  Infantry,  U.  S.  Armv,  did,  without  leave  from  his  superior  officer, 


FORMS  OF  CIIAlidES.  655 

lie  out  of  hia  quarters  at  Fort , ,  on  the  night  of  the  — th  day 

of ,  189—. 

This  at  ,  .    (Here  insert  the  place  at  which  the  offense 

was  committed.) 

Article  32. 

Charge. — Al)sencc  without  leave,  in  violation  of  the  32d  Article  of  War. 

Specification. — In  that  Private  F H ,  Battery  I),  — th  Regiment 

of   Artillery,  U.   S.  Army,  did  absent  himself  from   his  company,  without 

leave  from  iiis  commanding:  otticer,  from  —  a.m.  on th,  1892,  to 

_  P.M.  on th,  1892.' 

This  at , . 

Article  32. 
(overstaying  pass.) 

Charge. — Absence  without  leave,  in  violation  of  the  32d  Article  of  War. 

Specification. — In   that   Private  F K ,   Light   P>attery  D,  — th 

liegiinent  of  Artillery,  U.  S.  Army,  having  received  permission  to  be  absent 
from  his  battery  from  9  a.m.  August  2d,  189G,  until  2  p.m.  August  3d, 
189B.  did  fail  to  return  at  the  expiration  of  said  permission,  and  did  absent 
himself  from  his  company,  without  leave  from  his  commanding  ofiHcer,  from 
2  P.M.  August  3d,  1896,  until  3  a.m.  August  4th,  1896. 

This  at  or  near ,  . 

Article  33. 

Charge. — FailiTig  to  repair  to  place  of  rendezvous,  in  violation  of  the  33d 
Article  of  War. 

Specification.  —  In  that  Private  W II ,  Company  G,  — th  Regi- 
ment of  Infantry,  U.  S.  Army,  not  being  prevented  by  sickness  or  other 
necessity,  did  fail  to  repair  to  the  place  of  rendezvous  appointed  by  his  com- 
manding otHcer,   Captain  W S ,  — th  Regiment  of  Infantry,  U.  S. 

Army,  for  the  retreat  roll-call  of  his  company. 

This  at ,  ,  on  the  — th  day  of ,  189 — . 

Article  34. 

Charge. — Being  found  one  mile  (or  more  than  one  mile)  from  camp, 
witliout  leave  in  writing  from  his  commanding  otlicer,  in  violation  of  the 
34th  Article  of  War. 

Specification.  —  In  that  Private  E R ,  Company  E,  — th  Regi- 
ment of  Infantry.  U.  S.  Army,  was  found  at ,  one  mile  (or  more 

'  It  will  be  observed  that  the  offense  here  dcsc  ribed  can  be  committed  by  enlisted  men 
only.  Absence  wilboul  leave,  in  wliutever  form  it  may  assume,  is,  if  committed  by  a 
commiasioued  otticer,  chargeable  under  tlie  6id  Ailicle. 


656  APPENDIX  F. 

than  one  mile)  from  camp,  without  leave  in  writing  from  his  commanding 

officer. 

This  at , ,  on  the  — th  day  of ,  189—. 

Article  35. 

Charge. Failing  to  retire  to  his  tent  at  the  beating  of  retreat,  in  viola- 
tion of  the  35th  Article  of  War. 

Specification.— In  that  Private  L G ,  Company  — ,  — th  Regi- 
ment of  Infantry,  U.  S.  Army,  did  fail  to  retire  to  his  tent  in  the  camp  of 
his  company  on  the  North  Fork  of  the  Republican  River,  Kansas,  at  the 
beating  of  retreat  on  the  — th  day  of ,  189—. 

This  at . 

Article  36. 
(hiring  another  to  do  duty.) 
Charge. Hiring  another  to  do  his  duty,  in  violation  of  the  36th  Article 

of  War. 

Specification.— In  that  Private  T M ,  Company  D,  — th  Regi- 
ment of  Infantry,  U.  S.  Army,  having  been  regularly  detailed  as  a  member 
of  the  kitchen  police  of  his  company,  did  hire  Private  C K ,  Com- 
pany D,  — th  Regiment  of  Infantry,  U.  S.  Army,  to  do  his  duty  for  him,  as 
a  member  of  the  said  kitchen  police,  in  consideration  of  the  sum  of  one 
dollar  paid  to  the  said  Private  C K . 

This  at  Fort , ,  on  the  — th  day  of ,  189—. 

Article  36. 
(being  hired  to  do  duty.) 
Charge.— Being  hired  to  do  duty,  in  violation  of  the  36th  Article  of 

War. 

Specification.— In  that  Private  C K ,  Company  D,  — th  Regi- 
ment of  Infantry,  U.  S.  Army,  having  agreed  with  Private  T M , 

Company  D,  — th  Regiment  of  Infantry,  U.  S.  Army,  in  consideration  of 

the  sum  of  one  dollar,  to  perform  duty  for  the  said  Private  T ■  M as 

kitchen  police,  did  perform  the  said  duty,  in  pursuance  of  the  said  agree- 
ment with  Private  T M . 

This  at  Fort , ,  on  the  — th  day  of ,  189—. 

Article  37. 
(conniving  at  hiring  of  duty.) 
Charge.- Conniving  at  hiring  of  duty,  in  violation  of  the  37th  Article  of 
AVar. 


FORMS  OF  CHARGES.  657 

Specification.— In  tliat  Sergeant  R "W ,  Company  D,  — th  Regi- 
ment of   lurantry,  U.  S.  Army,  being  in  ciiarge  of  the  company  mess,  did 

connive  at    an    unlawful    hiring   by   autiiorizing    Private    T M , 

Company    D,    — th  Regiment    of    Infantry,    to   agree  witii   Private  C- 


K ,  Company  D,  — th  Regiment  of  Infantry,  to  perform  his  duty  as  a 

member  of  the  kitchen  police  of  the  said  Company  D,  — th  Regiment  of 

Infantry,  which  duty  was  actually  performed   by  the  said   Private   C 

K in  pursuance  of  such  unlawful  agreement. 

This  at  Fort , ,  on  the  — th  day  of ,  189—. 

Article  37. 
(allowing  hiring  of  duty.) 

Charge.  —Allowing  hiring  of  duty,  in  violation  of  the  37th  Article  of 
War. 

Specification.— In  that  Captain  N Y ,  commanding  Company  D, 

— th  Regiment  of  Infantry,  U.  S.  Army,  having  been  informed,  officially, 

by  First  Sergeant  G A ,  Company  D,  — th   Regiment  of  Infantry, 

that  the  practice  of  hiring  duty  existed  among  the  enlisted  men  of  Company 
D,  — th  Regiment  of  Infantry,  and  it  having  further  been  officially  reported 

to  him.  by  Sergeant  T U ,  that,  upon  at  least  one  occasion,  Private 

T M ,  of  the  said  company,  had  hired  Private  C K to  do 

duty  for  him  as  a  member  of  the  kitchen  police,  did  fail  to  put  a  stop  to  the 
said  practice,  but,  knowing  of  its  existence,  did  allow  it  to  continue. 

This  at  Fort , ,  on  the  — th  day  of ,  189—. 

Article  38. 
(drunk  on  duty  as  commanding  officer.) 
Charge. — Drunkenness  on  duty,  in  violation  of  the  38th  Article  of  War. 

Specification.— In  that  Major  T R ,  — d  Regiment  of  Artillery, 

U.   S.   Army,  being  in   command  of  the  military  post  of  Fort , 

,  did  become  drunk.' 

This  at  Fort ,  ,  on  the  — th  day  of  ,  189—. 


'  The  offense  described  in  this  Article  is  the  definite  one  of  "being  found  drunk  on 
duty  "—that  is.  discovered  to  be  drunk  while  engfiged  in  the  performance  of  the  particular 
iluty  set  forth  in  the  charges  and  specifications;  as  on  guard,  at  drill  inspection,  parade, 
muster,  the  performance  of  extra  or  daily  duty,  or  even  at  a  roll  call.  If  the  accused 
appears  at  the  preliminary  formation  for  the  duty,  as  at  the  formation  of  the  guard 
detail  or  at  .a  formation  for  parade  or  drill,  so  much  under  the  iuHuence  of  liipior  as 
to  be  incapacitated  for  its  performance,  he  should  not  be  permitted  to  enter  upon  the 
execution  of  the  duty  in  (piestion.*  but  should  be  proceeded  ai:ainst,  under  the  6'2d 
Article,  for  appearing  at  such  formation  so  much  iinder  the  intluence  of  into.\icating 
liquors  as  to  be  thereby. incapacitated  for  the  performance,  or  proper  performance,  of  the 
specified  duty.  If,  however,  his  condition  is  sucli  as  not  to  attract  notice  at  the  prelim- 
inary formation,  and  he  is  permitted  to  enter  upon  the  performance  of  the  duty,  and  is 
afterwards  found  to  have  become  drunk  prior  to  entering  upon  the  duty,  that  "fact  will 
not  avail  in  defense,*  and  need  not  be  considered  by  the  court  aa  a"  miticratiu"-  cir- 
cumstance. °        '^ 

*  Dig.  J.  A.  Gen.,  36,  par.  1;  Manual  for  Courts-martial,  16,  par.  5. 


658  APPENDIX  F. 

Article  38. 
(drunk  ox  duty  as  surgeon,  or  staff  officer.) 

Charge. — Drunkenness  on  duty,  in  violation  of  the  38th  Article  of  War. 

Specification. — In  that  Captain  W H .  Assistant  Surgeon,  Medical 

Department,  U.  S.  A.,  having  been  duly  assigned  to  duty  as  post  sur- 
geon at  Fort , ,  and  being  in  execution  of  the  duties  of 

that  office,  did  become  drunk. 

This  at  Fort ,  ,  on  the  — th  day  of ,  189—. 

Article  38. 

Charge. — Drunkenness  on  duty,  in  violation  of  the  38th  Article  of  War. 

Specification. — In  that  Private  W E ,  Company  F,  — th  Regiment 

of  Infantry,  U.  S.  Army,  while  on  duty  (or,  being  on  duty)  as  a  member  of 
the  post  guard  (or,  wliile  on  duty  as  stable  guard  ;  or  while  at  drill,  etc.), 
was  found  drunk.' 

This  at  Fort , ,  on  the  — th  day  of ,  189—. 

Article  39. 
(sleeping  on  post.) 

Charge. — Sleeping  on  post,  in  violation  of  the  39th  Article  of  War. 

Specification. — In  that  Private  R Y ,  Troop  D,  — th  Regiment 

of  Cavalry,  U.  S.  Army,  being  on  duty  as  a  member  of  the  post  guard  (or 
stable  guard;  or  camp  guard ;  or  outpost  or  picket  guard,  as  che  case  may  be), 
and  having  been  duly  posted  as  a  sentinel,  was  found  sleeping  upon  his 
post.' 

This  at  —  o'clock  p.m.,  on  the  — th  day  of ,  189 — , 

Article  39. 
(leaving  post.) 

Charge. — Leaving  post,  in  violation  of  the  39th  Article  of  War. 

Specification. — In  that  Private  E X .  Company  G,  — th  Regiment 

of  Infantry,  U.  »S.  Army,  being  a  member  of  the  post  guard  (or  camp  or 
stable  guard,  etc.),  and  having  been  duly  posted  as  a  sentinel,  did  leave  his 
post  before  he  was  regularly  relieved. 

This  at  Fort , ,  at  —  a.m.,  on  the  — th  day  of , 

189—. 

'  Tlie  form  sometimes  used  in  chareing  this  offense,  that  the  accused  was  "  regularly 
detailed  "  as  a  member  of  a  particiilar  guard,  though  correct,  is  unnecessary,  the 
regularity  of  the  detail  not  being  essential  as  an  allegation  in  the  specification. 


FORifS  OF  CUAIiGBS.  659 

Article  40. 

Charge. — Quitting  his  guard,  in  violation  of  the  40th  Article  of  War, 

Specification. — In  that  Corporal  G H ,  Light  Battery  G,  — th 

Eeginient  of  Artillery,  U.  S.  Army,  being  a  member  of  the  post  (stable  or 
picket)  guard  (or,  being  on  guard),  did,  without  urgent  necessity,  quit  his 
guard  without  leave  from  his  superior  officer. 

This  at  Fort ,  .  on  tlie  — th  day  of ,  1^0—. 

Article  41. 

Charge. — Creating  (or  occasioning)  a  false  alarm,  in  violation  of  the 
41st  Article  of  War. 

Specification. — In  that  Sergeant  R T ,  Troop  F,  — th  Regiment 

of  Cavalry,  U.  S.  Army,  did  create  a  false  alarm  in  camp  by  causing  the 
'•general  "  to  be  sounded,  without  authority. 

This  in  the  camp  of  a  detachment  of  the  — th  Regiment  of  Cavalry,  on 

the  North  Fork  of  the  Canadian  River,  Texas,  on  the  — th  day  of  , 

189—. 

Article  42. 
(cowardice,  misbehavior,  etc.) 

Charge. — Misbehavior  before  the  enemy,  in  violation  of  the  42d  Article 
of  War. 

Specification. — In  that  Captain  R 0 ,  — th  Regiment  of  Cavalry, 

Tj  .  S.  Armv,  being:  in  command  of  Troop  A,  — th  Regiment  of  Cavalrv,  and 
engaged  in  a  reconnaissance  (or,  "conducting  a  reconnaissance")  again.<t 
the  enemy,  did  misbehave  himself  by  retiring  from  the  position  occupied  by 
his  troop,  in  contact  with  the  enemy  (or  did  run  away  from  the  position 
occupied  by  his  command,  etc),  to  a  safe  position  in  the  rear,  from  which 
it  was  impossible  for  him  to  direct  the  movements  of  his  command  in  its 
operations  against  the  enemy. 

This  at ,  ,  on  the  — th  day  of ,  189 — . 

Article  42. 
(abandoning  a  post,  etc.) 

Charge. — Shamefully  abandoning  a  post,  in  violation  of  the  42d  Article 
of  War. 

Specification. — In  that  Major  W B .  — th  Regiment  of  Infantry, 

TJ.  S.  Army,  liaving  been  duly  assigned   to  command  the  cantonment  of 

,  a  most  important  and  critically  situated  post,  with  instructions  to 

reeolutelv  defend  the  same  (or,  to  defend  the  same  until  relieved:  or,  to 


660  APPEXDIX  F. 

defend  the  same  to  the  last  extremity),  did,  in  violation  of  his  duty  and  of 
the  trust  reposed  in  him,  shamefully  abandon  the  post  which  he  was  com- 
manded to  defend,  by  moving  his  command  from  the  said  cantonment, 
without  orders,  or  authority  from,  or  consultation  with,  superior  military 
authority. 

This  at  Cantonment  ,  ,  on  the  — th  day  of  , 

189—. 

Article  43. 

Charge. — Compelling  a  surrender,  in  violation  of  the  43d  Article  of 

War.' 

Specification.— In  that  Captain  H R ,  commanding  Company  A, 

th  Regiment  of  Infantry,  U.  S.  Army;  Captain  T R ,  command- 
ing Company  C,  — th  Regiment  of  Infantry,  U,  S.  Army;  Captain  F 

^' ,  commanding  Company  D,  — th  Regiment  of  Infantry,  U.  S.  Army; 

and  First  Lieutenant  C Y ,  commanding  Light  Battery  D,  — th 

Regiment  of  Artillery,  U.  S.  Army,  they  and  each  of  them,  being  engaged, 

as  company  commanders,  in  the  defense  of  the  post  of  Fort  , 

,  which  post  was,  at  the  time,  besieged  by  the  enemy,  did  each  of 


them  make  use  of  violent  threats  and  menances  against  Colonel  H 

D ,  _th  Regiment  of  Infantry,  U.  S.  Army,  commanding  the  said  post 

of  Fort , ,  and  they  and  each  of  them  did  declare  and  say  to 

the  said  Colonel  D ,  commanding,  that  if  the  defense  of  the  said  post 

was  continued,  that  they,  and  each  of  them,  would  withdraw  their  commands 
from  the  place,  or  places,  which  they  and  each  of  them  had  been  duly 
assigned  to  defend,  and  did,  further,  violently  and  forcibly  demand  of  the 
said  commander  that,  unless  he  did,  forthwith,  enter  into  communication 
with  the  enemy,  with  a  view  to  the  immediate  surrender  of  the  post  under 
his  command,  that  they  and  each  of  them  would  withdraw  their  commands 
from  the  place  which  they  and  he  had  been  appointed  to  defend  (or,  that 
thev  and  each  of  them  would,  with  force  and  arms,  compel  and  require  the 

said  Colonel  H D ,  commanding  the  said  post,  to  surrender  the  same 

to  the  enemy),  in  consequence  of  which  compulsion  by  force  the  said  Colonel 

\l D was  compelled  to  surrender  and  did  surrender  the  post  of 

Fort , ,  to  the  enemy. 

This  at  Fort , ,  on  the  — th  day  of ,  189—. 

Article  44. 

Charge. Making  known  the  watchword,  in  violation  of  the  44th  Articlft 

of  War. 


>  The  allegation  of  criminality  above  given   is  in   form   a   joint  charge.     For  an 
explanation  of  joint  charges  see  note  lo  Article  23.  p;ige  651.  ante. 


FORMS  OF  CUARGES.  661 

Specification. — In  that  Sergeaut  F T ,  Company  F,  — th  Regi- 

mejit  of  Infantry,   U.  S.   Army,  being  a  member  of  the  guard,  did  make 

known  the  countersign  to  T Y ,  a  civilian,  not  entitled,  by  the  rules 

and  discipline  of  war,  to  receive  the  same. 

This  at ,  ,  on  the  — th  day  of ,  IbO — . 


Article  44. 

Charge. — Giving  a  parole  different  from  that  which  he  received,  in 
violation  of  the  44th  Article  of  War. 

Specification. — In  that  Captain  D M ,  — th  Regiment  of  Infan- 
try, U.  kS.  Army,  bein<j^  otticer  of  the  day  at  the  camp  of  his  regiment  in  the 
field,  dill  presume  to  give  to  First  Lieutenant  G H ,  — th  Regi- 
ment of  Infantry,  U.  S.  Army,  the  ofhcer  of  the  guard  in  the  said  camp  of 
the  — th  Regiment  of  Infantry,  a  parole   differing   from  that    furnished 

officially  to  the  said  Captain  D M by  the  commanding  officer  of 

his  regiment. 

This  at ,  ,  on  the  — th  day  of ,  189 — . 

Article  45. 
(relieving  the  enemy.) 

Charge. — Relieving  the  enemy,  in  violation  of  the  45th  Article  of  War. 

Specification. — In  that  Major  T G ,  — th  Regiment  of  Cavalry, 

U.  S.  Army,  being  in  the  field  engaged  in  operations  against  the  enemy, 
did  relieve  the  said  enemy  with  victuals  by  furnishing,  or  causing,  or 
allowing  him  to  be  furnished  with  a  quantity  of  provisions,  to  wit,  with  two 
thousand  (2000)  pounds  of  hard  bread. 

This  at ,  ,  on  the  — th  day  of ,  189 — . 

Article  45. 
(harboring  an  enemy.) 

Charge. — Harboring  an  enemy,  in  violation  of  the  45th  Article  of  War. 

Specification. — In  that  Major  T Y ,  — th  Regiment  of  Cavalry, 

commanding  an  outpost  in  the  presence  of  the  enemy,  diil*  knowingly  har- 
bor and  protect  an  enemy,  by  receiving  and  entertaining  in  his  camp,  and 

afterward  permitting  to  return  to  his  own  lines,  one  Captain  R E , 

an  officer  in  the  military  service  of ,  with  which  the  United  States 

were  at  war. 

This  at ,  . ,  on  the  — th  day  of ,  189 — . 


^62  APPENDIX  F. 

Articlp:  46. 

Charge. — Correspouding  with  the  enemy,  in  violation  of  tlie  46th 
Article  of  War. 

Specification. — In    tliat    Captain    (j H ,  — th    Regiment    of 

Cavalry,  being  in  command  of  an  outpost  in  the  presence  of  the  enemy,  did 
without  authority  send,  by  means  of  a  flag  of  truce,  a  communication  in 
writing  to  tlie  commanding  officer  of  the  enemy  in  his  immediate  front,  the 
said  communication  being  in  the  following  words  and  figures,  to  wit  (here 
insert  the  written  communication),  and,  in  reply  to  the  same,  did  receive 
from  the  said  enemy  a  communication  in  writing,  in  the  following  words 
and  figures,  to  wit  (here  insert  the  written  reply). 

This  at ,  on  the  — th  day  of ,  189 — . 

Article  47. 

Charge. — Desertion,  in  violation  of  the  47th  Article  of  War. 

Specification. — In  that  Private  A B ,  Company  — ,  — th  U.  S. 

Infantry,  a  soldier  in  the  service  of  the  United  States, '  did  desert  the  same 

at ,  on  or  about  the  of ,  18 — ,  and  did  remain  absent 

in  desertion  until  he  was  apprehended  (or  until  he  surrendered  himself), 
at ,  on  or  about  the of .  18 — .  * 


Article  49. 

Charge. — Quitting  his  post,  on  tender  of  resignation,  in  violation  of  the 
49th  Article  of  War. 

Specification. — In  that   Lieutenant   L II ,   — th   Regiment  of 

Cavalry,  U.  S.  Army,  having  tendered  the  resignation  of  his  commission  as 
a  first  lieutenant  in  the  — th  Regiment  of  Cavalry,  XJ.  S.  Army,  did  on  the 

— th  day  of ,  189 — ,  without  leave  from  proper  authority,  and  prior 

to  due  notice  having  been  received  of  the  acceptance  of  the  same,  quit  his 

'  Tliis  form  is  applicable  either  in  case  a  soldier  has  "received  pay"  or  has  been 
"  duly  enlisted."  lu  either  case  the  "  stateineut  of  service"  will  enable  the  court  to 
determine  as  to  the  statute  of  limiiation  and  proper  punishment.  See  Manual  for 
Courts-martial,  pat^e  32,  par.  10,  and  page  50, 

-  If  a  soldier  deserts  and  enlists  in  another  troop  he  should  be  charged  with  desertion 
under  the  47ih  Article,  and  also  with  "  fraudulent  eidistment.  to  the  prejudi(;e  of  good 
order  and  military  discipline,"  under  the  62d.*  The  specification  to  the  latter  charge 
should  read  as  ff)llows  ; 

"  In  that  Private  A B ,  Company  — ,  — th  Infantry,  a  soldier  in  the  service  of 

the  United  States,  did,  without  a  discharge  from  said  regiment  of  infantry,  fraudulently 

enlist  in  Troop  —. — ,  U.  S.  Cavalry,  at ,  on  tlie of ,  18 — ,  under  the 

name  of ." 


*  See  .50th  A.  W.  and  G.  O.  57,  A.  G.  O.,  1892.      For  definition  of  "fraudulent  enlistment,"  see 
Manual  for  Courts-martial,  page  12,  note  4. 


FORMS  OF  CUARGES.  663 

post  and  proper  duties,  with  the  intent  to  remain  permanently  absent  there- 
from.     (If  tiie  absence  wad  terminated  by  tlie  arrest  or  surrender  of  the 

offender,  add  "and  did  remain  absent  in  desertion  until , , 

189 — ,  when  he  was  apprehended  at ";  or  "surrendered  himself  at 

,  .  ") 

This  at ,  . 


Article  50. 
(receiving  or  entertaining  a  deserter.) 

Charge. — Enlisting  a  deserter,  in  violation  of  the  50th  Article  of  War. 

Specification. — In  that  First  Lieutenant  J T ,  — th  Regiment  of 

Infantry,  U.  S.  Army,  post  recruiting  officer  at  Fort  Y ,  , 

did  enlist  C H in  Troop  G,  — th  Kegiment  of  Cavalry,  knowing 

the  said  C II to  be  a  deserter  from  Light  Battery  D,  — th  Regi- 
ment of  Artillery,  U.  S.  Army. 

This  at  Fort ,  on  the  — th  day  of ,  189—. 

Article  50. 
(failing  to  confine  deserter,  etc.) 

Charge. — Failing  to  confine  deserter,  in  violation  of  the  50th  Article 
of  War. 

Specification. — In  that  First  Lieutenant  J T ,  — th  Regiment  of 

Infantry,  U.  S.  Army,  having  been  informed  that  Private  C H ,  an 

enlisted  man  under  his  command,  was  a  deserter  from  Light  Battery  D, 
— th  Regiment  of  Artillery,  U.  S.  Army,  did  wholly  fail  and  neglect  to 
cause  the  said  deserter  to  be  confined,  and  did  also  fail  and  neglect  to  give 
notice  thereof  to  the  corps  in  which  the  said  deserter  last  served. 

This  at ,  on  the  — th  day  of ,  189 — . 

Article  51. 
(advising  to  desert.) 

Charge. — Advising  desertion,  in  violation  of  the  51st  Article  of  War. 

Specification. — In  that  Private  R T ,  Company  E, — th  Regi- 
ment of  Infantry,  U.  S.  Army,''did  advise   Private  F W ,  Company 

F,  — th  Regiment  of  Infantry,  to  desert  the  military  service  of  the  United 
States. 

This  at ,  ,  on  the  — th  day  of ,  189 — . 


G04  APPENDIX  F. 

Akticle  51. 
(persuading  to  desert.) 

Charge.— Persuading  a  soldier  to  desert,  iu  violation  of  the  51st  Article 

of  War. 

Specification.— In  that  Private  K Y ,  Company  D,  — th  Regi- 
ment  of   Infantry,    U.   S.    Army,    did  advise  and  persuade  Private  E 

M ,  Company  F,  — th  Regiment  of  Infantry,  a  duly  enlisted  soldier,  to 

desert   the   military  service   of  the  United  States,  in  consequence  of  which 

advice  and  persuasion   the  said   Private   E M did,   subsequently, 

to  wit,  on  the  — th  day  of ,  189—,  desert  the  said  military  service. 

rpj^ig  .^^i ^ .  on  the  — th  day  of ,  189 — . 

Article  52. 

The  procedure  under  this  Article  is  summary  in  character.  The  offense, 
if  committed  by  an  officer,  may  have  been  observed  by  the  commanding 
officer  himself,  in  which  case  no  investigation  would  seem  to  be  necessary ; 
or,  it  may  have  been  brought  to  the  attention  of  the  commanding  officer 
in  the  form  of  a  report  submitted,  in  the  usual  manner,  by  a  commis- 
sioned officer  of  the  army,  in  which  event  the  matter  should  be  made  the 
subject  of  proper  official  inquiry.  If  the  fact  that  an  offense  under  the 
Article  has  been  committed  is  substantiated  by  the  inquiry,  a  statement  of 
such  fact  should  be  submitted,  by  the  proper  commander,  to  a  general 
court-martial,  if  such  a  tribunal  be  in  session  at  the  post.  The  duty  of 
framing  and  administering  the  reprimand  devolves,  under  the  Article,  on 
the  president  of  the  court;  and  is  administered,  in  the  presence  of  the 
court,  at  one  of  its  regular  sessions,  or  at  a  special  session  convened  for  the 
purpose.  The  record  should  set  forth  the  nature  and  character  of  the 
offense,  as  shown  by  the  statement  made  to  the  court  by  the  commanding 
officer,  and  a  literal  copy  of  the  reprimand  administered ;  it  should  also 
show  that  the  accused  was  present  during  the  administration  of  the  repri- 
mand. The  procedure  in  the  case  of  an  enlisted  man  is  fully  set  forth  in 
the  text  of  the  Article. 

Article  54. 

Charge. Refusing  (or  omitting)  to  see  justice  done,  in  violation  of  the 

54th  Article  of  War. 

Specification.— In  that  Major  J K ,  — th  Regiment  of  Infantry, 

U.  S.  Armv,  being  in  command  of  a  detachment  of  troops  of  the  United 
States  Army  on  the  march,  and  complaint  having  been  duly  made  to  him, 
by  (or  in  behalf  of)  A B ,  a  citizen  of  the  United  States,  that  cer- 


FORMS  OF  CHARGES.  665 

tain  members  of  liis  command,  to  wit:  (tlie  oiTenders  sliould  be  named  and 
identified,  if  practicable,  utlierwise  the  specilicatiou  t-iiould  allege  that  the 
otienders  were  "to  the  complainant  unknown")  had  beaten,  robbed,  and 
otherwise  ill-treated  him,  did  wholly  fail  and  omit  (or  did  refuse)  to  see 
justice  done  to  the  said  complainant  (or  reparation  made  to  the  said  com- 
plainant). 

This  at ,  ,  on  the  — th  day  of ,  189 — . 

Article  55. 
(committing  waste.) 

Charge. — Committing  waste,  in  violation  of  the  55th  Article  of  War. 

Specification. — In  that  Sergeant  T Y ,  Troop  A,  — th  Kegiment 

of  Cavalry,  U.  S.  Army,  being  in  command  of  a  detachment  of  the  — th 
liegiment  of  Cavalry,  acting  as  train-guard,  did  commit  waste  in  an  inclosure 

belonging  to   A B.    C ,   an   inhabitant  of  the  United   States,  by 

cutting  down  and  destroying  a  quantity  of  standing  timber  in  the  said 
inclosure,  the  said  waste  not  being  committed  by  the  order  of  a  general  oflScer 
commanding  a  separate  army  in  the  field. 

This  at , ,  on  the  — th  day  of ,  189 — . 

Article  55. 
(spoliation.) 

Charge. — Spoliation,  in  violation  of  the  55th  Article  of  War. 

Specification. — In  that  Captain  C H ,  commanding  Troop  D, 

— th  Regiment  of  U.   S.  Cavalry  in  the  field,   did  commit  spoil  (or  did 

despoil)  the  grain  fields  belonging  to  A G ,  an  inhabitant  of  the 

United  States,  by  causing  the  horses  of  his  company  to  be  turned  into  the 
said  grain  fields,  and  by  causing  the  enlisted  men  of  his  command  to  throw 
down  the  stacks  of  grain  in  the  said  fields,  the  said  spoliation  not  being 
committed  by  order  of  a  general  officer  commanding  a  separate  army  in  the 
field. 

This  at , ,  on  the  — th  day  of ,  189 — . 

Article  55. 
^malicious  destruction.; 

Charge. — Malicious  destruction  of  property,  in  violation  of  the  55th 
Article  of  War. 

Specification. — In  that  First  Lieutenant  C G ,  — th  Ref^iment 

of  Infantry,  U.  S.  Army,  being  in  command  of  a  detachment  of  his  regi- 
ment on  outpost  duty,  did,  without  authority,  enter  the  house  of  A 

G ,  an  inhabitant  of  the  United  States,  and  did  maliciously  destroy,  and 

did   cause  the  enlisted  men  of  his  command   to  destroy,  certain  personal 


666  APPENDIX  F. 

property,  belonging  to  the  said  A G ,  to  wit,  certain  furniture, 

pictures,    curtains,   and   tableware,   the   said  destruction  of   property  not 
having  been  ordered  by  a  general  otiicer  commanding  a  separate  army  in  the 

field. 

r^'l^is  at ,  ,  on  the  — th  day  of ,  189—. 

Article  56. 

Charge. — Doing  violence  to  a  person  bringing  provisions  to  the  camp,  in 
violation  of  the  56th  Article  of  War. 

Specification.— In  that  Sergeant  G Y ,  Company  F,  — th  Regi- 
ment of  Infantry,  U.  S.  Army,  being  on  duty  with  the  camp  guard  of  his 

regiment,  in  foreign  parts,  did  assault  and  beat  with  his  rifle  one  A 

H ,  a  person  bringing  provisions  to  the  camp. 

Tiii3  at ,  ,  on  the  — th  day  of ,  189—. 

Article  57. 

Charge. Forcing  a  safeguard,  in  violation  of  the  57th  Article  of  War. 

Specification.— In  that  Private  F R ,  Company  I,  — th  Regiment 

of  Infantry,  U.  S.  Army,  being  in  foreign  parts  (or  "being  at  a  place 
within  the  United  States  during  rebellion  against  the  supreme  authority  of 

the  United  States"),  did  enter  the  premises  of  A II ,  a  person,  to 

whom  a  safeguard  had  been  furnished  by  Major-General  G N ,  com- 
manding the  Army  of ,  and,  having  been  duly  informed  by  the  said 

A II that  a  safeguard  had  been  furnished  him  (or  that  the  premises 

were   protected  by  a   safeguard),    (or,  "  the   said  safeguard  having   been 

exhibited  to  him  by  the  said  A H "),  did,  in  contempt  of  the  said 

authority,  feloniously  take,  steal,  and  carry  away  a  quantity  of  grain  belong- 
ing to  the  said  A II ,  to  wit,  one  hundred  pounds  of  oats. 

Tijjg  at ,  ,  on  the  — th  day  of ,  189—. 

Article  58. 
(larceny.) 

Charge.— Larceny,  in  violation  of  the  58th  Article  of  War. 

Specification.— In  that  Private  R Y ,  Company  I,  — tli  Regiment 

of  Infantry,  U.  S.  Army,  did,  in  time  of  war  (or  in  time  of  insurrection,  or 
rebellion,  etc.),  feloniously  steal,  take,  and  carry  away  (here  describe  the 
article  of  personal  property  which  was  made  the  subject  of  the  larceny),  of 

the  value  of dollars  (I ),  the  property  of  the  United  States, 

furnished  for  use  in  the  military  service,  (or,  if  belonging  to  a  private  owner, 
"  the  property  of  F G "). 

This  at ,  ,  on  the  — th  day  of ,  189—. 


FORMS  OF  CEARQES.  667 

Article  58. 
(burglary.) 

Charge. — Burglary,  in  violation  of  the  58th  Article  of  War. 

Specification. — In  that  Corporal  Y R ,  Company  K,  — th  Regi- 
ment of  Infantry,  U.  S.  Army,  did,  in  time  of  war  (or  of  insarrection,  etc.), 

feloniously  and  burglariously  break  and  enter  the  dwelling-house  of  II 

S ,  in  the  night-time,  with  intent  to  commit  a  felony  therein — to  wit, 

(here  insert  the  offense,  as  larceny,  robbery,  etc.). 

This  at ,  ,  on  the  — th  day  of ,  189 — . 

Article  58. 
(robbery.) 

Charge. — Robbery,  in  violation  of  the  58th  Article  of  War. 

Specification. — In  that  Corporal  E M ,  Battery  E,  — th  Regi- 
ment of  Artillery,  U.  S.  Army,  did,  in  time  of  war  (insurrection,  etc.), 
feloniously  and  forcibly  take  from  the  person  (or  "  in  the  presence")  of 

n D (here  describe  the  article  of   personal  property  which  was 

made  the  subject  of  the  forcible   taking),  to  the  value  of dollars 

(^ )• 

This  at ,  ,  on  the  — th  day  of ,  189 — . 

Article  58. 
(arsox.) 

Charge. — Arson,  in  violation  of  the  58th  Article  of  War. 

Specification. — In  that  Private  T M ,  Troop  M,  — th  Regiment 

of  Cavalry,  U.  S.  Army,  did,  in  time  of  war  (insurrection,  etc.),  willfully, 
maliciously,  and  feloniously  set  fire  to  and  burn  the  house  (or  outhouse, 
shed,  or  other  outbuilding  within   the  curtilage,  or  inclosure,  pertaining 

thereto),  of  A B (if  not  occupied  by  the  owner  in  fee,  the  premises 

should  be  described  as  "  occupied  by  T Y ,  a  tenant  for  years,"  or 

"a  monthly  tenant,"  as  the  case  may  be);  (if  the  building  be  public 
property,  it  should  be   described   as  "a  dwelling-house  belonging  to  the 

United  States  and  occupied  by  Captain  F E ,  — th  Regiment  of 

Infantry,  as  his  quarters"). 

This  at , ,  on  the  — th  day  of ,  189 — . 

Article  58. 

(mayhem.) 

Charge. — Mayhem,  in  violation  of  the.  58th  Article  of  War. 

Specification. — In  that  Corporal  T H ,  Light  Battery  B,  — th 

Regiment  of  Artillery,  U.   S.   Army,  did,  in  time  of  war,  assault  Private 


668  APPENDIX  F. 

E H ,  Light  Battery  B,  — th  Kegiment  of  Artillery,  with  a  knife, 

and  did  willfully  and  feloniously  wound,  maim,  injure,  and  disable  the  said 

Private  R H for  service  as  a  soldier. 

This  at ,  ,  on  the  — th  day  of ,  189 — . 

Akticle  58. 

(MANSLAUGHTf:R.) 

Charge. — Manslaughter,  in  violation  of  the  58th  Article  of  War. 

Specification. — In  that  Private  W T ,  Company  A,  — th  Regi- 
ment of  Infantry,  U.  S.  Army,  did,  in  time  of  war,  willfully  and  feloniously 

kill  one  E P ,  by  striking  and  beating  him  on  the  head  with  his 

rifle,  thereby  causing  his  death  (or,  if  death  does  not  immediately  ensue, 

"  thereby  inflicting  a  mortal  wound   upon  the  person  of  the  said  E 

P ,   in  consequence  of    which"    (or,    "from   the    effects   of   which") 

"  wound   or   injury   he,  the   said  E P ,   died   on   the  — th   day 

of  ,  189—"'). 

This  at , ,  on  the  — th  day  of ,  189 — . 

Article  58. 
(murder.) 

Charge. — Murder,  in  violation  of  the  58th  Article  of  War. 

Specification. — In  that  Private  R 0 ,  Company  D,  — th  Regi- 
ment of  Infantry,  U.  S.  Army,  did,  in  time  of  war,  willfully,  feloniously, 

and  with  malice  aforethought,  murder  and  kill  R Y ,  by  (here  set 

forth  the  manner  of  killing,  as  by  shooting  him  with  a  pistol,  stabbing  with 
a  sword,  bayonet,  dagger,  etc. ;  or  by  striking,  or  beating  with  a  club,  rifle, 
gun;  or  by  shooting,  etc.,  together  with  a  description  of  the  injury  inflicted, 
as  to  its  character,  as  mortal,  etc.,  its  location,  etc.;  or  by  administering 
poison,  or  by  neglect  to  care  for  a  person  under  tutelage,  as  a  child,  or 
minor,  or  a  pauper  or  insane  person,  and  the  like),  thereby  causing  his  death ; 
(where  death  does  not  immediately  ensue,  it  should  be  alleged  that  a  mortal 
wound  was  inflicted,  on  a  day  certain,  in  consequence  of  which  (or,  from 
the  effects  of  which)  the  injured  person  died  on  a  day  specified). 

This  at , ,  on  the  — th  day  of ,  189 — . 

Article  58. 

(assault    and    battery    with    intent    to    KILL.) 

Charge. — Assault  and  battery  with  intent  to  kill,  in  violation  of  the  5&th 
Article  of  War. 

Specification. — In  that  Private  E T ,  Company  O,  — tli  Regi- 
ment of  Infantry,  TJ.  S.  Army,  did,  in  time  of  war,  make  a  violent  assault 


FOliMH   OF  CHARGES.  60^ 

upon  one  Y G ,  a  citizen,  by  shooting  him  with  a  pistol  loaded  with 

powder  and  ball  (or,  "  by  striking  him  repeatedly  on  the  head  with  his 
sabre/'  etc.),  with  intent  then  and  there   feloniously,  willfully,  and  with 

malice  aforethought,  to  kill  and  murder  the  said  Y G . 

This  at , ,  on  the  — th  day  of ,  189 — . 

Article  58. 

RAPE. 

Charge. — Rape,  in  violation  of  the  58th  Article  of  War. 

Specification. — In  that  Private  T H ,  Troop  E,  — th  Regiment 

of  Cavalry,  U.  S.  Army,  did,  in  time  of  war,  feloniously  make  an  assault, 
and  by  force  and  violence  and  against  her  will,  did  ravish  and  carnally  know 
one  R J . 

This  at ,  ,  on  the  — th  day  of ,  189 — . 

Article  58. 
(assault  and  battery  with  intent  to  commit  rape.) 

Charge. — Assault  and  battery  with  intent  to  commit  rape,  in  violation 
of  the  5Sth  Article  of  War. 

Specification. — In  that  Private  E T ,  Battery  E,  — th  Regiment 

of  Artillery,  U.  S.   Army,  did,   in  time  of  war,  feloniously  and  with  force 

and  violence,  assault  one  M G ,  and  her  did  beat,  bruise,  wound 

and  ill-treat  with  intent,  violently  and  against  her  will,  feloniously  to  ravish 
and  carnally  know  the  said  M G . 

This  at , ,  on  the  — th  day  of ,  189—. 

Article  59. 

Charge. — Neglect  (or  refusal)  to  surrender  a  soldier  to  the  civil  magis- 
trate, in  violation  of  the  59th  Article  of  War. 

Specification. — In   that   Major   T Y ,    commanding   the   — th 

Regiment  of  Infantry,  U.  S.  Army,  application  having  been  duly  made  to 

him,  in  time  of  peace,  by  (or  in  behalf  of)   R W ,  a  citizen  of  the 

United  States,  for  the  apprehension  and  delivery  to  the  civil  magistrate,  of 

Private  R J ,  Battery  D,  — th  Regiment  of  Artillery,  an  enlisted 

man  under  the  command  of  the  said  Major  T Y ,  charged  with  a 

violation  of  the  law  of  the  land,  to  wit,  with  larceny,  in  violation  of  the  law 

of  the  State  of ,  committed  against  the  property  of  the  said  R 

W ,  did  refuse  (or  willfully  neglect)  to  deliver  over  the  said  offender  to 

the  civil  nuigistrate  (or  "  did  refuse''  or  "  did  willfully  neglect  to  aid  the 

officers  of  justice  in  apprehending")  the  said  Private  R J ,  charged 

with  crime  as  aforesaid. 

This  at ,  ,  on  the  — th  day  of ,  180—. 


670  APPEMJIX  F. 

Akticle  go. 
(makini;  a   fkaldllent  claim.) 

Charge. — Making  a  fraudulent  cluiin  against  the  United  States,  in 
violation  of  tlie  (iOtii  Article  of  War. 

Specification. — In  that  First  Lieutenant  (J AY ,  — th  Keginient 

of  Infantry,  U.  S.  Army,  Acting  Assistant  Quartermaster,  U.  S.  Army,  at 

Fort ,  did  present,  or  did  cause  to  be  presented  for  payment  to  Captain 

H T ,  Assistant  Quartermaster,   U.  S.  Army,  Depot  Quartermaster 

at  ,    ,  a  claim  against  the  United  States — to  wit,  a  pay-roll 

for   the  payment    of    dollars   (I ),  to    A B ,    C 

D ,  E F ,  and  G II ,  for  services  alleged  to  have  been 

rendered  by  them  as  civilian  employees  of  the  United  States  at  the  post  of 

, ,  during  the  month  of  September,  189 — ,  which  claim  was 

false  and  fraudulent,  and  was  well  known  by  the  said  First  Lieutenant 
G W to  be  false  and  fraudulent. 

This  at , ,  on  the  — th  day  of ,  189 — . 

Article  60. 

(presenting    A    FRAUDULENT    CLAIM.) 

Charge. — Presenting  a  fraudulent  claim,  in  violation  of  the  GOth  Article 
of  War. 

Specification. — In  that  First  Lieutenant  P F ,  — th  Kegiment 

of  Cavalry,  Y.  S.  Army,  did  prepare  or  cause  to  be  prepared  and  did  present 

to  Colonel   H D ,  Gth  Regiment  of  Cavalry,  for  approval  (or  did 

present  to  Captain  G K ,  Assistant  Quartermaster,  Depot  Quarter- 
master at ,    ,    for  payment)   a  claim   against  the  United 

States,  amounting  to  two  hundred  and  eighty  dollars  ($280.00),  the  said 
claim  being  a  voucher  for  the  payment  of  certain  civilian  employees  of  the 

United  States,  at  the  post  of  Fort ,  ,  for  services  alleged  to 

have  been  rendered  during  the  month  of  September,  189 — ,  the  said  voucher 
being  in  the  following  words  and  figures,  to  Avit:  (here  insert  the  fraudulent 
instrument  in  writing)  well  knowing  the  said  claim  to  be  false,  fictitious, 
and  fraudulent. 

This  at ,  ,  on  the  — th  day  of ,  180—. 

Article  GO. 

(conspiring    to    obtain    PAYMENT    OR    ALLOWANCE    OF    CLAIM.) 

Charge. — Entering  into  an  agreement,  (or  conspiring)  to  defraud  the 
United  States,  by  obtaining  the  allowance  of  a  fraudulent  claim,  in  violation 
of  the  GOth  Article  of  War. 

Specification. — In  that  First  Lieutenant  F P ,  — th  Regiment 

of  Cavalry,  U.  S.  Army,  did  enter  into  an  agreement  (or  did  conspire)  with 
one  W G ,  a  citizen,  to  cheat  and  defraud  the  United  Stales  by 


FORMS  OF  CUARGES.  671 

obtaining,  or  aiding  and  assisting  to  obtain,  tlie  payment  or  allowance  of  a 
false  and  fraudulent  claim  for  services  alleged  to  liave  been  rendered  by 

E F ,  (! II ,  I J ,  K W ,  and  W K , 

as  civilian  employees  of  the  United  States,  at  the  post  of , , 

daring  the  month  of  September,  189 — . 

This  at ,  ,  on  tlie  — th  day  of ,  180—. 

Article  GO. 

Charge. — Making  a  false  statement  in  writing,  in  violation  of  the  GOth 
Article  of  War. 

Specification. — In  that  First  Sergeant  H Y ,  Company  I),  — th 

Regiment  of  Infantry,  U.  S.  Army,  did,  for  the  purpose  of  obtaining  the 
allowance  or  payment  of  a  claim  against  the  United  States,  make  or  cause 
to  be  made  an  instrument  in  writing  purporting  to  be  the  final  statement  in 

the  case  of  Private  W S— — ,  Company  D,  — th  Regiment  of  Infantry, 

in  the  following  words  and  figures,  to  wit  (here  insert  the  fraudulent  instru- 
ment in  writing),  which  final  statement  was  well  known  by  the  said  First 
Sergeant  II Y to  be  false  and  fraudulent. 

This  at , ,  on  the  — th  day  of ,  189 — . 

Article  GO. 

Charge. — Signing  a  certificate  without  knowledge  of  its  correctness,  in 
violation  of  the  GOth  Article  of  War. 

Specification. — In  that  Captain  U F ,  Assistant  Quartermaster, 

U.   S.  Army   Depot  Quartermaster  at ,  ,  being  authorized 

as  such  to  make  and  deliver  receipts  for  property  furnished  for  the  military 
service,  did  make  or  cause  to  be  made  and  delivered  to  C G ,  a  con- 
tractor for  furnishing  forage,  under  a  contract  with  the  United  States  dated 

th,   189 — ,  a  certificate  to  the  effect  that  he,  the  said  Captain 

D F ,  had  received  from  the  said  contractor  a  quantity  of  forage, 

to  wit,  one  hundred  thousand  pounds  (100,000  lbs.)  of  corn  and  one 
hundred  and  fifty  thousand  pounds  (150,000  lbs.)  of  oats,  for  the  use  of 
the  said  military  service,  which  certificate  was  given  by  the  said  Captain 

D F without  having  full  knowledge  of  the  truth  of  the  statements 

therein  contained,  and  with  intent  to  defraud  the  United  States. 

This  at ,  ,  on  the  — th  day  of ,  189 — . 

Aktic^.f,  go. 

(maktxi;  siiokt  i'aymext.)' 

Charge. — Making  a  false  {layrneut,  in  violation  of  the  GOth  Article  of 
War. 


'  Where  a  disbiirsiiiii;  oflBccr  huving  caused  a  creditor  of  the  United  States  to  sipn  a 
receipt  iu  blank  paid  him  a  less  sum  than  was  due  him,  and  afterwards  inserted  the 


672  APPENDIX  F. 

Specification. — In  that  Captain  G H ,  as  Assistant  Quarter- 
master, U.  8.  Army,  Post  Quartermaster  at   Fort , ,  and  as 

such  being  in  charge  and  custody  of  certain  money  and  property  of  the 
United  States  furnished  and  intended  for  the  military  service  thereof,  did 

make  and  deliver  or  cause  to  be  made  and  delivered  to  R H ,  a 

contractor  for  the  supply  of  forage  at  the  said  post  of ,  a  voucher 

purporting  to  account  for  the  purchase  of  a  quantity  of  forage,  to  wit,  one 
hundred  tons  of  hay,  amounting  to  eight  hundred  dollars  ($800.00),  and 

did  cause  and  require  the  said  R H to  sign  a  receipt  attached  to 

and  forming  a  part  of  the  said  voucher  in  the  follovring  words  and  figures, 
to  wit  (here  insert  the  receipt),  the  said  receipt  purporting  to  be  given  for 
the  payment  of  eight  hundred  dollars  ($800.00),  which  receipt  was  false,  in 
that  the  sum  of  five  hundred  dollars  only  was  actually  paid  to  and  received 

by  the  said  R H ,  in  consideration  of  the  delivery  to  the  United 

States  of  the  stores  aforesaid. 

This  at  Fort , ,  on  the  — th  day  of ,  189 — . 

Article  60. 

(purchasing    ammunition,    ETC.)' 

Charge. — Purchasing  ammunition,  in  violation  of  the  60th  Article  of 
War. 

Specification. — In  that  Corporal  T G ,  Company  G,  — th  Regi- 
ment of   Cavalry,   did,   without  authority,    purchase  from   Private  E 

R ,  Company  A,  — th  Regiment  of  Infantry,  a  quantity  of  ammunition, 

to  wit,  one  hundred  and  fifty  (150)  rounds  of  carbine  cartridges,  calibre  45, 
the  said  ammunition  being  the  property  of  the  United  States,  for  which 

Captain  F K ,  — th  Regiment  of  Infantry,  was  responsible,  and  did 

give  to  the  said  Private  E R in  payment  therefor  the  sum  of  one 

true  amount  due  in  the  receipt  so  as  to  obtain  credit  with  the  United  States  for  the 
greater  sum,  held  that  he  was  chargeable  with  the  offense  defined  in  the  7th  paragraph 
of  this  Article.     Dig.  J.  A.  Gen.,  56,  par.  5. 

Where  an  officer  by  collusion  with  a  contractor  who  had  contracted  for  the  delivery 
of  military  supplies  received  for  a  pecuniary  consideration  from  the  latter  a  less  amount 
of  supplies  than  the  United  States  was  entitled  to  under  the  contract,  while  at  the  same 
time  giving  him  a  voucher  certifying  on  its  face  the  delivery  of  the  whole  amount,  held 
tli-it  such  officer  wjis  chargeable  with  an  offense  of  the  class  defined  in  the  8th  paragraph 
of  this  Article.     Ibid.,  par.  6. 

Where  an  officer  allowed  to  an  enlisted  man  and  paid  to  him  out  of  certain  public 
funds  consisting  of  the  proceeds  of  a  public  sale  of  condemned  quartermaster  stores  an 
amount  of  ten  per  centum  on  the  total  of  such  proceeds  as  a  compensation  for  the  ser- 
vices of  such  man  as  auctioneer  at  the  sale,  held  that  such  payment  was  illegal  and  unau- 
thorized,* and  con.stituted  an  embezzlement  of  public  money  chargeable  under  the  60th 
or  the  62d  Article.     Ibid.,  60,  par.  20. 

'  The  unlawful  sale  or  purchase  of  arms,  ammunition,  or  equipments  not  issued  to 
enlisted  men  as  a  part  of  their  equipment  for  service  should  be  charged  under  the  60th 
Article. 


•  So,  also,  held  by  the  Second  Comptroller  of  the  Treasury  in  the  same  case.    See  opinion  published 
in  arc.  No.  3  (H.  A.),  1894. 


FORMS  OF  CHARGES.  ^'73 

dollar  and  fifty  cents  ($1.50),  which  sale  was  fraudulent,  the  said  ammu- 
nition being  furnished  to  Private  E If ,  Company  A,  — th  Regi- 
ment of  Infantry,  for  use  in  the  military  service,  and  he  having  no  lawful 
right  to  dispose  of  the  same. 

This  at , ,  on  the  — th  day  of ,  189—. 

Article  GO. 
(embezzlement.)' 

Charge. — Embezzlement,  in  violation  of  the  60th  Article  of  War. 

Specification. — In  that  Captain  C L ,  Commissary  of  Subsist- 
ence, U.  S.  Army,  Depot  Commissary  of  Subsistence  at , , 

having  in  his  official  capacity  as  such  depot  commissary  of  subsistence 
received  officially  the  sum  of  one  hundred  and  eighty  dollars  ($180.00), 
moneys  of  the  United  States  (here  state  the  source  from  which  the  funds 
were  received,  as  from  sales  to  officers,  sales  at  auction,  and  the  like),  fur- 
nished and  intended  for  the  military  service  thereof,  did  fraudulently, 
unlawfully,  and  feloniously  convert  to  his  own  use  and  did  embezzle  the 
same.  (Or  "  did  unlawfully  and  wholly  fail  to  account  to  the  United  States 
for  the  said  sum  or  any  part  thereof,  but  did  convert  the  same  to  his  own 
use.") 

This  at ,  ,  on  the  — th  day  of ,  189 — . 

Article  60, 

(misapplication.  ) 

Charge. — Misapplication  of  public  property,  in  violation  of  the  GOth 
Article  of  War. 


'  In  a  case  of  embezzlement  of  public  funds*  or  property  charged  under  t-his  Article 
it  is  not  necessary  to  allege  in  terms  or  to  prove  an  intent  to  defraud  the  United  States. 
It  is  the  act  of  legal  embezzlement  wliich  is  made  the  offense,  irrespective  <if  the  purpose 
or  motive  of  such  act.     Dig.  J.  A.  Gen.,  56,  par.  7.     See,  also,  par.  9,  ibid. 

In  order  to  determine  whether  certain  acts  or  conduct  may  properly  be  charged  as 
constituting  embezzlement  of  public  money  under  the  9th  paragraph  of  this  Article,  the 
sections  of  the  Revised  Statutes,  especially  those  contained  in  Chapter  6  of  Title  LXX, 
may  properly  be  recurred  to.  Acts  here  specilied  as  constituting  embezzlements  in  law 
may,  when  eoinniitled  by  oliicers  of  the  Army,  be  charged  as  embezzlements  under  this 
Artiile,  and  the  rules  of  evidence  established  by  these  sections  may  also  be  apilied 
where  apposite  to  military  cases. f  But  as  to  the  penalties  prescribed  in  thf  same,  tliese, 
though  useful  as  iroing  to  indicate  a  reasonable  measure  of  piinishment  wln-n  imprison- 
ment or  fine  is  propo.sed  to  be  adjudged,  are  of  course  in  no  respect  obligatory  upon 
military  triljutuils,  and  any  approved  military  penalty  or  penalties,  sucli  as  dismissjd, 
suspension,  etc.,  may  be  imposed  by  courts  martial  upon  conviction  of  cmbizzleinent, 
either  alone  or  in  conncciion  with  impri-^oinnent  or  fine.  So  a  term  of  cf)nlinement  or  a 
tine  (or  forfeiture  of  pay)  in  excei^n  of  the  penalties  authorized  for  civil  offeniler>  may 
legally  be  adjudged  by  such  courts.     Ibid.,  par.  8. 

*  "All  money  lawfully  in  tlie  hands  f>f  a  jnitilio  offu'er.  ami  for  which  he  is  accountable,  is  money  of 
the  United  States."     United  States  i-.^.  Wnlkins.  3  Craiioh  C.  C.  441. 

t  See  cases  in  which  embezzlenienis  of  this  class  were  cliarged  atrainst  officers  of  the  .^rniv  in  G.  O. 
1,  War  Dept  ,  1861 ;  G  C.  M.  O.  4.3.  86.  Hdqrs.  of  Army.  1868;  do.  'Jl.  War  Dept.,  1871 ;  do.  JT.  34.  id.,  187:2; 
do.  81,  id..  1874;  do.  52,  Hdqrs.  of  Army,  1877. 


674  APPENDIX  F. 

Specification. — In  that  First  Lieutenant  R T ,  — th  Regiment 

of  Infantry,   U.   S.  Army,  being  on  duty  as  Post  Quartermaster  at  Fort 

, ,  and  having  in  his  capacity  as  such  post  quartermaster 

received  a  quantity  of  himber  (to  wit,  eight  hundred  feet),  the  property  of 
the  United  States,  furnislied  for  the  use  of  tlie  military  service  thereof,  did 
knowingly  and  willfully  misappropriate  the  same  by  causing  it  to  be  manu- 
factured into  articles  of  household  furniture  for  the  personal  use  of  the 

officers  serving  at  Fort (or,  "  did  knowingly  and  wilfully  convert 

a  portion  of  the  same,  to  wit,  three  hundred  feet,  more  or  less,  to  his  own 
use  bv  causing  it  to  be  manufactured  into  articles  of  furniture  for  his 
personal  use). 

This  at  Fort , ,  on  the  — th  day  of ,  189 — . 

Article  60. 
(pledging  goverxmext  property.) 

Charge. — Receiving  arms  in  pledge,  in  violation  of  the  60th  Article  of 
^\'ar. 

Specification. — In  that  Sergeant  R V\ ,  Light  Battery  D,  — th 

Regiment  of  Artillery,  did  receive  from  Private  R F ,  Troop  E, 

— th  Regiment  of  U.  S.  Cavalry,  one  Colt's  revolver,  pattern  of  1894,  in 
pledge  for  the  payment  of  a  loan  of  two  dollars  and  fifty  cents  (12.50),  made 

by  him  to  the  said  Private  R F ,  the  said  revolver  being  the  projjerty 

of  the  United  States,  issued  to  him  for  use  in  the  military  service,  and  for 

which  Captain  F Y ,  — th  U.  S.  Cavalry,  was  responsible,  and  which 

the  said  Private  R F had  no  lawful  right  to  pledge. 

This  at , ,  on  the  — th  day  of ,  189 — . 

Article  61.' 

Charge. — Conduct  unbecoming  an  officer  and  gentleman,  in  violation  of 
the  61st  Article  of  War. 

Specification. — In  that  Captain  R Y ,  Subsistence  Department, 


'  To  constitute  an  offeuse  under  this  Article  tbe  conduct  need  not  be  "scandalous 
and  infamous."  These  words,  contained  in  the  original  Article  of  1775,  were  dropped 
in  the  form  adopted  in  1806.  Nor  is  it  euential  that  the  act  should  compromise  the  honor 
of  the  officer.*  It  is  only  necessary  that  the  conduct  should  be  such  as  is  at  once  dis- 
graceful or  disreputable,  and  manifestly  unbefitting  both  an  officer  of  the  Army  and  a 
gentleman. f  An  act,  however,  which  is  only  slightly  discreditable  is  not  in  practice 
made  the  subject  of  a  charge  under  this  Article.  The  Article,  in  making  the  punish- 
ment of  dismissal  imperative  in  all  cases,  evidently  contemplates  that  the  conduct,  while 
unfitting  the  party  for  the  society  of  men  of  a  scrupulous  sense  of  decency  and  honor, 


*  G.  O.  25.  Dept.  of  the  Missouri,  IS'JV, 

♦  "  An  offlopf  of  tlift  Army  is  bound  hy  the  taw  to  he  a  grpntipman."  Afty.-Oen.  Gushing.  6  Opins., 
417.  See  definitions  or  partial  definitions  of  tiie  i-lass  of  offenses  contemplated  by  this  Article  in  G.  O. 
45,  Army  of  the  Potomac.  1864:  do.  29,  Dept.  of  Califoinia.  186r);  do.  7,  Dept.  of  the  Lakes,  187>';  G.  C. 
M.  O.  69,  Dept.  of  the  East,  1870;  do.  41,  Hdqrs.  of  Army,  1879. 


FORifS  OF  CHAROES.  bTS 

U.  S.  Army,  did  (here  set  forth  the  facts  constituting  the  alleged  violation 
of  the  Article). 

This  at ,  ,  on  the  — th  day  of ,  189—. 

shall  exhibit  him  as  unworthy  to  hold  a  commission  in  the  Army.     Dig.  J.  A.  Gen.,  61, 
par.  1. 

The  following  acts  committed  in  a  particular  case  held  to  be  offenses  within  this 
Article  :  preferring  false  uccusiitioiis  against  an  officer;  attempting  to  induce  an  officer 
to  join  in  a  fraud  ui)ou  the  L'nited  Slates;  attempt  at  subornation  of  peijury.  Ibid.,  62, 
par.  3.  Knowingly  making  to  a  superior  a  false  official  report,  held  chargeable  under 
this  Article.  So  of  a  deliberately  false  official  certificate  as  to  the  trutli  or  correctness  of 
an  official  voucher,  roll,  return,  etc.  So  of  any  deliberately  false  official  statement, 
written  or  verbal,  of  a  material  character.      Jbid.,  par.  2. 

The  violation  by  an  officer  of  a  promi.se  or  pledge  on  honor,  given  by  him  to  a 
superior  in  consideration  of  tiie  withdrawal  l)y  the  latter  of  charges  preferred  for  drunk- 
enness. Jbid.,  62,  par.  6.  Enguging  when  into.xicated  in  a  light  with  another  officer  in  the 
billiard-room  at  a  post-trader's  establishment  in  the  presence  of  other  officers  and  of  civil- 
ians, held  an  offense  within  this  Article.  So  held  of  an  engaging  in  a  disorderly  and 
violent  altercation  and  tight  with  another  officer  in  a  public  place  at  a  nnlitary  post  in 
sight  of  officers  and  soldiers.  So  held  of  an  exhibition  of  liiniself  b}-  an  officer  in  a  pub- 
lic place  in  a  grossly  drunken  condition.  Jbid.,  60,  par.  8.  Gambling  with  enlisted 
men  in  a  public  place,  held  an  olTense  within  this  Article.  And  so  of  frequenting  in 
uniform  a  disrei)utable  gambling-house  and  gambling  with  gamesters.     Jbid.,  par.  9. 

To  justify  a  charge  under  this  Article  it  is  not  necessary  that  the  act  or  conduct  of 
the  officer  should  be  immediately  connected  with  or  should  directly  affect  the  nnlitary 
service.  It  is  sufficient  that  it  is  morally  wrong  and  of  such  a  nature  that,  while  dishon- 
oring or  disgracing  him  as  a  gentleman,  it  compromises  his  chaiacter  and  position  as  an 
officer  of  the  Army.*     Ibid.,  par.  10. 

Thus,  though  a  mere  neglect  on  the  part  of  an  officer  to  satisfy  his  private  pecuniary 
obligations  will  not  ordinaiily  furnish  sufficient  ground  for  charges  against  him,  yet 
where  the  debt  has  been  dishonorably  incurred — as  where  money  has  been  borrowed 
under  false  promises  or  representations  as  to  payment  or  security,  or  where  the  non-pay- 
ment has  been  accompanied  by  such  circumstances  of  fraud,  deceit,  evasion,  denial  of 
indebtedness,  etc..  as  to  amount  to  dishonorable  conduct^thc  continued  non-payment 
in  connection  with  the  facts  or  circumstances  rendering  it  dishonorable  may  properly  be 
deemed  to  constitute  an  offense  cliargeable  under  this  Article. f    Jbid.,  par.  11. 

The  following  acts  held  to  constitute  offenses  under  this  Article  :  fraudulently  pro- 
curing a  divorce  from  his  wife  by  an  officer;  failuie  on  the  part  of  an  officer  to  support 
his  wife  and  child  without  adequate  excuse  therefor;  procuring  or  allowing  himself  by 
a  retired  officer  to  be  placed  bj'  legal  proceedings  under  a  conservator  as  a  habitual 
drunkard.     Ibid.,  65,  par.  20. 

The  use  of  abusive  language  toward  a  commanding  officer  may  constitute  an  offense 
under  this  Article.     Ibid.,  par.  21. 

The  duplication  of  a  '■  pay-roll  "  or  claim  for  monthly  pay  is  always  an  offense  under 
this  Article. t  It  is  no  defense  that  the  transfer  was  made  before  the  pay  was  actually 
due  and  payable,  i.e.,  before  the  end  of  the  month.  While  such  a  transfer  may  be 
inoperative  in  view  of  par.  1300,  A.  R.  of  1895,  in  so  far  as  that  the  Government  ma\' 
refuse  to  recognize  it.  it  is  valid  as  between  the  officer  and  the  part}',  and  to  allow  the 
former  to  shelter  himself  behind  the  regulation  would  be  to  permit  him  to  take  advan- 
tage of  his  own  wrongful  and  fraudulent  act.  Ibid.,  par.  23.  It  has  also  been  held  that 
a  continued  neglect  without  adequate  excuse  to  satisfy  a  pecuniary  obligation  long  over- 
due after  specific  assurances  criven  of  speedy  payment  was  a  dishonorable  act  conslilut- 
iug  an  offense  under  this  Article.§    Jbtd.,  66,  par.  26. 

*  See.  also.  n.  C.  M.  O.  37,  A.  G.  O.,  1888:  8  ibid..  1890;  G.  O.  106,  A.  G.  O.,  189.3;  56  id.,  1S94. 

t  Cases  of  officers  made  amenalile  to  trial  hy  court-martial  under  this  Article  for  the  non-fulfilment 
of  pecuniary  ol)li?atioiis  to  other  otBcers,  enlisfeii  men.  post-traders,  and  civilians  are  found  in  the  fol- 
lowing General  Orders  of  the  War  Dept.  and  Hd<irs.  of  Army:  No.  87  of  IStifi:  do.  .3,  .'i.'i,  64  of  18C9:  do. 
ID  of  1870:  do.  17  of  1871;  do.  '.'0,  4(5  of  It;?-,':  do.  10  of  187:1;  do  iV  50,  fk8.  80  of  l,-^74;  do.  25  of  1875;  do.  100 
of  1876;  do.  46  of  1877.  See.  also,  G.  C.  M.  O.  37,  A.  G.  O.,  1888;  3  i6/(/..  1880;  85  id.,  1891 ;  G.  O.  56,  65, 
and  106.  A.  G.  O..  1893;  53  id..  1894:  -'0  iil..  1805:  38  i,l..  1896. 

t  See  G.  C.  M.  O.  37,  A.  G.  <^..  18SS:  -'0  ibid..  IS'.KI:  (i.  C.  M.  O.  8,  A.  G.  G.,  I89:i. 

S  See  the  recent  rulin-r  to  i  similar  effect  by  the  Supreme  Court  in  Fletcher  vs.  U.  S..  148  U.  S.,  91, 
9*2;  also  the  same  case  in  30  Ct.  CI..  541. 


076  APPENDIX  F. 

Article  62." 

Charge. — Neglect  of  duty,  in  violation  of  the  G2d  Article  of  War. 

Specification. — In  that  First  Lientenaut  K L ,  — th  Regiment 

of  Artillery,  U.  S.  Army,  being  officer  of  the  day  at  Fort , , 

did  wholly  fail  and  neglect  to  inspect  the  guard  under  his  charge,  after 

midnight,  as  required  by  paragraph ,  of  the  authorized  Manual  of  Guard 

Duty.' 

This  at  Fort , ,  on  the  — th  day  of ,  189—. 

Article  62. 

Charge. — Creating  a  disorder  (or  "  provoking  a  quarrel  "),  in  violation 
of  the  62d  Article  of  War. 

Specification.— In  that  Private  T H ,  Light  Battery  E,  — th 

Regiment  of  Artillery,  U.  S.  Army,  did  create  a  disorder  (or  provoke  a 
quarrel)  in  the  quarters  of  Light  Battery  E,  — th  Regiment  of  Artillery, 
by  (here  set  forth  the  acts  or  words  which  caused  the  disorder  or  provoked 
the  quarrel). 

This  at , ,  on  the  — th  day  of ,  189—. 

Article  62. 
Charge. — Absence  without  leave,  in  violation  of  the  62d  Article  of  War. 

Specification.— In  that  Captain  G K ,  2d  Regiment  of  Artillery, 

U.    S.   Army,  did   absent  himself  from  his  company   and  duty   without 

1  For  forms  of  charges  in  the  case  of  certain  crimes  at  common  law,  such  as  larceny, 
burglary,  mayhem,  etc.,  see  the  58th  Article.  For  the  conditions  to  be  fulfilled  by  an 
offense  in  order  to  authorize  its  trial  under  this  Article,  see  Dig.  J.  A.  Gen.,  67,  pars.  1 

and  2. 

■'  A  crime,  disorder,  or  neglect  cognizable  under  this  Article  may  be  charged  either  by 
its  name  simply  as  "larceny,"  "drunkenness,"  "neglect  of  duty,"  etc.,  or  by  its  name 
with  the  addition  of  the  words  "  to  the  prejudice  of  good  order  and  military  discipline," 
or  simply  as  "conduct  to  the  prejudice  of  good  order  and  military  discipline,"  or  as 
"  violation  of  the  62d  Article  of  War."  It  is  immaterial  in  which  form  the  charge  is 
expressed,  provided  the  specificatioQ  sets  forth  facts  constituting  an  act  jn'ima  facie 
prejudicial  to  good  order  and  military  discipline.  Whenever  the  charge  and  specifica- 
tion taken  together  make  out  a  statement  of  an  act  clearly  thus  prejudicial,  etc.,  the 
pleading  will  be  regarded  as  substantially  sutficient  under  this  general  Article.  Dig.  J. 
A.  Gen.,  72,  par.  8. 

A  charge  of  "conduct  to  the  prejudice,"  etc.,  with  a  specification  setting  forth 
merely  trials  and  convictions  of  the  accused  for  previous  offenses  is  not  a  pleading  of 
an  offense  under  this  Article  or  of  any  military  offense.  So  of  a  charge  of  "habitual 
drunkenness  to  the  prejudice,"  etc.,  with  a  specification  ."-etling  forth  instances  in  wliich 
the  accused  has  been  sentenced  for  acts  of  drunkenness.  Such  charges  indeed  are  in 
contravention  of  the  principle  that  a  party  shall  not  be  twice  tried  for  the  same  offense. 
So,  a  specification  under  tlie  charge  of  "conduct  to  the  prejudice,"  etc.,  wliich  sets 
forth  not  a  distinct  offense,  but  simply  the  result  of  an  aggregation  of  similar  offenses,  is 
insufficient  in  law.  Where  the  specifications  to  such  a  charge  in  a  case  of  an  officer  set 
forth  that  the  accused  was  "  frequently"  drvmk,  "  frequently"  absented  him.'^elf  with- 
out authority  from  his  command,  etc.,  held  that  these  specifications  were  properly  struck 
out  by  the  court  on  the  motion  of  the  accused.  In  stich  a  case  the  only  correct  plead- 
ing is  a  general  charge  under  this  Article,  with  .specifications  setting  forth,  each  sepa- 
rately, some  particular  and  specific  instance  of  offense.     Ibid.,  par.  9. 


FOBMH  OF  VHARQEd. 


677 


authority,  from 
— th,  189—. 
This  at 


A.M. 


— th,  189—,  until 


P.M.,  on 


Article  62, 
(making  use  of  reproachful  speeches,   etc.) 
Charge. — Making  use  of  reproachful  speeches  or  gestures,  in  violation  of 


K ,  Troop  D,  — th  Regiment 


the  f)"-id  Article  of  War 

Specification. — In  that  Corporal  II 
of  Cavalry,  XJ.  S.  Army,  did  address  the  following  reproachful  (or  "  provok- 
ing ")  speeches  (or  gestures)  to  Private  G Y ,  Troop  D,  — th  Regi- 
ment of  Cavalry  (here  insert  the  language  used,  literally  or  in  substance), 

or   did  make  use  of   provoking  gestures   toward    Private   G Y , 

Troop  D,  — th  Regiment  of  Cavalry,  by  (here  describe  the  gestures  or  other 
provoking  conduct). 

This  at , ,  on  the  — th  day  of ,  189 — . 

Article  62. 

(neglect  of  duty.) 

Charge. — Neglect  of  duty,  to  the  prejudice  of  good  order  and  military 
discipline. 

Specification. — In   that    Private  A B ,   Co.  ,  — th    U.    S. 

Infantry,  being  on  duty  as ,  and  it  being  his  duty  as  such  to , 

did  fail  and  neglect  to  perform  said  duty. 

This  at ,  ,  on  the  — th  day  of ,  189 — . 

Article  62. 
(perjury.) 
Charge. — Perjury,'  to  the  prejudice  of  good   order  and  military  dis- 
cipline. 

Specification. — In   that  Private  A B ,  Co.  ,  — th   U.    S. 

Infantry,  having  been  duly  sworn,  at  his  own  request,  as  a  witness  in  his 

own  defense  before  a court-martial,  convened  at ,  by 

order  No.  ,  dated ,  189 — ,  for  his  trial,  did  willfully,  falsely,  and 

corruptly  testify  as  follows: 


•  "  Perjury  before  courts-martial  is  by  statute  made  indictable  in  most  jurisdictions  ; 
but  even  when  a  statute  docs  not  apply,  the  wtiiilit  of  authority  is  that  it  is  perjury  at 
common  law."  (Wharton.  Crim.  Law,  i;  1259.)  It  is  a  statutory  crime  under  seciion 
539'2.  Revised  Statutes  of  the  United  St.atos.  So  that  false  swearing  before  a  court- 
martial,  if  it  possesses  the  other  elements  of  perjury,  is  perjury,  und  can  be  trid  as  such 
by  court-martial  under  the  fiSd  Article  of  War.  The  rules  of  evidence  in  resranj  to  per- 
jury will  then  apply.  When  any  of  the  elements  of  perjury  are  lackinir,  the  offense  will 
properly  be  charged  as  "  false  swearing,"  e.g  ,  when  the  matter  is  not  material  to  the 
issue.     Manual  for  Courts-martial,  116.^  See",  also,  Dig.  J.  A.  Gen.,  pp.  5«5,  586. 


678  APPENDIX  F. 


Question  by  jadge-advocate: 
Answer: 


Which  testimony  was  false  in  that  {specify  in  what  respects),  and  which 

testimony  was  known  by  him,    the   said   A B ,   to  be  false,   was 

material  to  the  issue  then  being  tried,  and  was  given  with  intent  to  deceive 
the  court. 

This  at , ,  on  the  — th  day  of ,  189—.' 

Article  G2. 
(fraudulent  enlistment.) 
Charge. — Fraudulent  enlistment,  in  violation  of  the  G2d  Article  of  War. 

Specification.— In  that  Private  A B ,  Co.  ,  — th  Infantry, 

a  soldier  iu  the  service  of  the  United  States,  did,  without  a  discharge  from 

said  regiment  of  infantry,   fraudulently  enlist  in  Troop ,   — th  U.   S. 

Cavalry,  at ,  on  the  — th  day  of ,  189—,  under  the  name 

of  C D .' 


Article  62. 

(fraudulent  enlistment.) 

Charge.— Fraudulent   enlistment,    in  violation  of   the  62d  Article  of 

War.' 

Specification.— In    that   Private   A B ,  Co.   ,  — th    U.    S. 

Infantrv,  did,  at ,  on  the  — th  day  of ,  189—,  fraudulently 

enlist  as  a  soldier  in  the  service  of  the  United  States,  by  falsely  representing 
that  he  had  never  been  discharged  from  the  United  States  service  by  sen- 
tence of  a  military  court  and  by  deliberately  and  willfully  concealing  from 

the  recruiting  officer,  ,  the  fact  of  his  dishonorable  discharge  from 

^  on ^  pursuant  to  sentence  of  court-martial;  and  that  he  has 

at ^,  since  said  enlistment,  received  pay  and  allowances  thereunder. 

Or, 

Specification.— In    that   Private  A B ,  Co. ,   — th  U.   S. 

Infantrv,  did,  at ,  on  the  -th  day  of ,  189-,  he  being  a 

minor,  fraudulentlv  enlist  as  a  soldier  in  the  service  of  the  United  States  by 

falsely  representing  himself  to  be  over  21  years,  to  wit, years  ai.d  -- 

months  of  age;  and  that  he  has  at ,  since  said  enlistment,  received 

pay  and  allowances  thereunder. 

,„rt  "the  47,rArTicte  "n.l  also  ^vilh  "  fraudulent  enlistmenl  ,0  the  prejudice  of  good 
■"■"."Thi;'  rorm"wd'K;.i'l"o*  hf  per«,o  oflendiug  is  a  citizen  .ud  .he  fraud 
alleged  was  committed  at  enlistment. 
""Tj^  Article  50^  and  G.  O.  57,  A.  G.  O.,  1892. 


FORMS  OP  CHARGES.  ^'^i^ 

Article  G2. 

(DRUNKENNEiSS,    ETC.) 

Charge. — Driinkeiiuess  and  disorderly  couduct,  to  the  prejudice  of  good 
order  and  military  discipline. 

Specification.  — Ill   tluit  Private   A li ,   Co.  ,   — th  U.  S. 

Infantry,  was  drunk  and  disorderly  in . 

This  at , ,  about ,  on  the  — th  day  of , 

189—. 

Article  62. 
(neglect  of  duty.) 

Charge. — Suffering  a  prisoner  to  escape,  to  the  prejudice  of  good  order 
and  military  discipline. 

Specification.  — In    that  Private   A B ,    Co.  ,  — th  U.   S. 

Infantry,  while  on  duty  as  a  sentinel,  did,  through  neglect,  suffer  Private 

C D ,  Co.  ,  — th  U.  S.  Infantry,  a  prisoner  under  his  charge, 

to  escape. 

This  at , ,  on  the  — th  day  of ,  189—. 

Article    Go. 
(breach  of  arrest,  in   quarters.) 

Charge. — Breach  of  arrest,  in  violation  of  the  65th  Article  of  War. 

Specification. — In  that  Captain  T R ,  — th  Pegiment  of  Artil- 
lery, U.  S.  Army,  having  been  lawfully  placed  in  arrest  by  his  commanding 
officer,  Major  E C ,  — th  Pegiment  of  Artillery,  did,  without  au- 
thority (or  "not  having  been  released  from  such  arrest  by  competent  au- 
thority"), leave  his  quarters  (or  tent),  and  did  visit (here  specify 

the  place  visited  by  the  accused). 

This  at ,  on  the  — th  day  of ,  189—. 

Article  65. 
(breach  of  arrest,  on  the  march.) 

Charge. — Breach  of  arrest,  in  violation  of  the  Goth  Article  of  War. 

Specification.— In  that  First  Lieutenant  G T ,  — th   Pegiment 

of  Infantry,  U.  S.  Army,  having  been  lawfully  placed  in  arrest  by  his  com- 
manding otticer.  Major  T F ,  — th  Pegiment  of  Infantry,  and  hav- 
ing been  ordered,  by  the  said  commanding  officer,  to  march  in  rear  of  his 
company,  did,  without  authority  (or  "  not  having  been  released  from  such 
arrest  by  competent  authority''),  leave  the  place  assigned  him  in  column 
and  did  visit •  (or  "'did  advance  to  the   head  of  tlie  column  of  his 


eSO  APPENDIX  F. 

regiment,"  or  "did  fall  back  from  the  place  assigned  him  in  column  and 
join  the  stragglers  in  rear  of  the  command"). 

This  at  or  near ,  ,  on  the  — th  day  of ,  189—. 


Article  62. 
(reproachful  speeches  or  gestures,     see  article  25.) 

Charge.— Conduct  prejudicial  to  good  order  and  military  discipline,  in 
violation  of  the  62d  Article  of  War. 

Specification.— In  that  Private  T R ,  Troop  F,  — th  Regiment 

of  Cavalrv,  did  make  use  of  reproachful  speeches  toward  Private  E 

D ^  Troop    F,  — th   Regiment  of  Cavalry,   by  calling  him  a  d d 

coward.     (If  gestures  were  used,  they  should  be  accurately  described.) 

This  at  Fort ,  ,  on  the  — th  day  of ,  189—. 


Article  68. 

(jliarge. Failing  to  report  the  confinement  of  a  prisoner,  in  violation  of 

the  68th  Article  of  War. 

Specification.— In  that  First  Lieutenant  G S ,  — th  Regiment  of 

Infantrv,  U.  S.  Army,  being  officer  of  the  guard  at  Fort ,  , 

and  a  prisoner— to  wit,  Private  E Y ,  Troop  D,  — th  Regiment  of 

Cavalry— having  been  lawfully  committed  to  his  charge,  did  wholly  fail  and 
neglect,  upon  being  relieved  from  duty  as  such  officer  of  the  guard,  or 
within  twenty-four  hours  after  such  commitment,   to  submit  a  report  in 

writing  of  the  said  confinement  to  his  commanding  officer.  Colonel  T 

K .  — th  Regiment  of  Infantry,  U.  S.  Army. 

This  at  Fort , ,  on  the  — th  day  of ,  189—. 


Article  69. 
(releasing  a  prisoner.) 
Charge.— Releasing  a  prisoner  without  authority,  in  violation  of  the  69th 

Article  of  War. 

Specification.— In  that  Second  Lieutenant  R G ,  — th  Regiment 

of  Infantry,   U.   S.   Army,  being  officer  of  the  guard  at  Fort  , 

-,  and  a  prisoner,  to  wit.  Private  F W ,  Battery  F,  — th  Regi- 


ment of  Artillery,  hashing  been  lawfully  committed  to  his  custody  by  Captain 
Y^ (-; ^  JLth  Regiment  of  Artillery,  did,  without  authority,  presume 

to  release  the  said  prisoner. 

This  at  Fort ,  ,  on  the  — th  day  of ,  189—. 


FORMS   OF  CHARGES. 


681 


Article  69. 
(suffering  a  prisoner  to  escape.) 

Charge. — Suffering  a  prisoner  to  escape,  in  violation  of  the  fJ9th  Article 
of  War. 

Specification. — In  that  Second  Lieutenant  G I ,  — th  Regiment 

of  Artillery,    U.   S.   Army,   being  officer  of  the  guard  at  Fort  , 

,  and  a  prisoner,  to  wit.  Private  K H ,  Troop  D,  — th  Regi- 
ment of  Cavalry,  having  been  lawfully  committed  to  his  custody,  did, 
through  negligence,  suffer  the  said  prisoner  to  escape. 

This  at  Fort ,  ,  on  the  — th  day  of ,  189—. 

(being  a  spy.) 

Charge.— Being  a  spy,  in  violation  of  Section  1343,  Revised  Statutes. 

Specification. — In  that  J H ,  a  citizen,  did  deliberately,  will- 
fully, secretly,  and  in  disguise,  to  wit,  in  the  dress  and  garb  of  an  enlisted 
man  of  the  United  States  Army,  come  within  the  lines  of  the  United  States 
Army,  in  time  of  war,  for  the  purpose  of  obtaining  intelligence  of  the  said 
forces  with  intent  to  convey  the  said  intelligence  to  the  enemy,  and  did 
secretly,  furtively,  and  covertly  obtain  information  with  respect  to  the  said 
forces  and  did  attempt  to  convey  the  same  to  the  enemy. 

This  at ,  on  the  — th  day  of ,  189—. 


statement  of  service.' 


statement  of  service  of 


-,  Company ,  — th  Regiment 


{Required  by  paragraph  927,  Army  RegulatioJis.) 


FORMER    SERVICE. 


Date  of  Enlistment. 


Date  of  Discharge. 


Character  on  Discharge. 


Date  of  present  enlistment 


— ,  189—. 


Date  of  confinement  under  present  charges 


— ,  189—. 


(Place.) 
(Date.) 


Commanding 


'  Required  by  paragraph  927,  Army  Regulations  of  19Wi. 


6S2  APPENDIX  F. 

surgeon's  report  on  alleged  deserter.' 

Fort 


— ,  18- 


Sik:  In  compliance  with  paragraph  121,  Army  Kegulations  of  1895,  I 

have  the  honor  to  report  that  I  have  critically  examined ,  an 

alleged  deserter,  and  find  him  fit  for  service;    {or)  unfit  for  service  on 
account  of . 


Post  Surgeon. 
To  the  Post  Adjutant. 


'  Required  by  paragraph  121,  Army  Regulations  of  1895. 


APPENDIX  G. 

FORMS  OF  PLEAS. 

Plea  to  the  Jurisdiction. 

General  Court- mahtial  Rooms, 

Fort , , 

May  —,  189—. 
May  it  please  the  Court : 

The  undersigned,  W H ,  having  heard  the  charges  and  specifi- 
cations read,  in  which  it  is  alleged  that  he  is  a  private  in  Company  D,  — th 
liegiment  of  Cavalry,  U.  S.  Army,  says  that  he  is  not  now  and  never  has 
been  an  enlisted  man  in  the  company  or  regiment  aforesaid,  or  a  member  of 
the  military  establishment  of  the  United  States,  but  that  he  is  a  citizen,  not 
connected  with  the  military  service;  and  this  he  is  ready  to  verify.' 

W ^  H . 

RECORD    OF    DECISION. 

And  the  court,  having  maturely  considered  the  plea  and  statement  of  the 
accused  (together  with  the  evidence  submitted  in  its  support')  and  the  state- 
ment of  the  judge-advocate  in  opposition  thereto,  sustains  the  plea  of  the 
accused  (or,  "  finds  that  the  accused  is  not  a  member  of  the  militarv  estab- 
lishment of  the  United  States),  aiid  directs  that  he  be  excused  from  making 
further  answer  to  tlie  charges  and  specifications  aforesaid  (or,  "overrules 
the  plea  and  directs  that  the  defendant  make  further  answer  to  the  cliarges 
and  specifications  "). 


If  the  plea  be  based  upon  the  claim  that  tlie  offense  charged  is  not  a  military 
offense,  the  foliowin-r  form  of  words  should  l)e  used:  "says  that  the  offense  alleired 
against  him  in  the  aforesaid  charire  and  specification  is  not  an  offense  under  the  — th 
Article  of  War  aforesaid.  Wherefore  he  pravs  judirment  of  the  s.iid  charce  and  speci- 
ticalion,  and  that  lie  maybe  disch;uged  from  further  answer  to  the  sjiid  char-'e  and 
specitication." 

'  If  testimony  is  submitted   in  connection  with   the  plea,  it  is  recorded  in  the  usual 
form.    The  accused,  havini:  the  burden  of  proof  cast  upon  him  by  the  rules  of  evidence 
presents  his  testimony  in  supjwrt  of  the  plea,  and  this  is  followed  bv  testimony  in  re- 
buttal, if  any  there  be.     The  accused,  havinij  the  affirmative  of  the  issue  raised  by  the 
plea,  IS  entitled  to  the  opening  and  closing  address. 

683 


GS4  APPENDIX   G. 

Former  Acquittal  or  Conviction. 

General  Court-martial  Rooms, 
Fort ,  , 

June  — ,  189 — . 

May  it  please  the  Court: 

The  undersigued,  Captain  H J ,  — th  Kegiment  of  Infantry, 

U.  S.  Army,  liaving  heard  the  charges  and  specifications  read,  says  that  the 
Vnited  States  ought  not  further  to  prosecute  the  — d  specification  of  the 

— d  charge  against  him,  because  on th,   189 — ,  he  was  brought 

before  a  general  court-martial,  convened  at  Fort , ,  by  virtue 

ot  Special  Orders  Number  3,  Headquarters  Department  of ,  dated  at 

,  ,  on  the  — th  day  of  ,    189 — ,  and  was  then  and 

there  duly  tried  and  lawfully  convicted  (or  acquitted),  of  the  offense  charged 
in  the  charge  and  specification  aforesaid ;  and  this  the  undersigned  is  ready 
to  verify.  Wherefore  he  prays  that  he  may  be  discharged  from  making 
further  answer  to  the  — d  specification  of  the  — d  charge  aforesaid. 

H J , 

Captain  — th  Regiment  of  Infantry , 
United  States  Army. 

record  of  decision. 

The  court  having  maturely  considered  the  plea  of  the  accused  and  the 
testimony  submitted  in  its  support,'  together  with  the  statement  of  the 
judge-advocate  in  opposition  thereto,  sustains  the  plea  and  orders  that  the 
defendant  be  excused  from  making  further  answer  to  the  — d  specification 
of  the  — d  charge  (or,  if  the  plea  be  not  sustained,  the  record  should  state, 
after  the  word  support,  "  overrules  the  same  and  directs  the  defendant  to 
make  further  answer  to  the  — d  specification  of  the  — d  charge  "). 


Pardon. 


General  Court-martla^l  Rooms, 

Fort  , , 

,  189—. 


May  it  please  the  Court  : 

The   undersigned.   Major  T L ,   — th  Regiment  of  Infantry, 

U.  S.  Army,  having  heard  the  charges  and  specifications  read,  says  that  the 
United  States  ought  not  to  prosecute  the  — d  specification  of  the  — d  charge 

against  him  because  the  offense  was  pardoned  by  Brigadier-General  K 

H ,  commanding  the  Department  of  the ,  the  said  pardon  being 

contained   in  a  letter  restoring  the  said  defendant  to  duty  without  trial. 


>  See  note  1,  page  683,  ante. 


FORMS  OF  PLBAS.  685 

which  letter  was  in  the  following  words  and  figures,  to  wit  (here  insert  the 
letter) ;  and  this  the  undersigned  is  ready  to  verify.  lie  therefore  prays 
that  he  may  be  discharged  from  making  further  answer  to  the  said  — d 
specification  of  the  — d  charge  aforesaid. 

T L , 

Major  — th  Regiment  of  Infantry^ 
United  States  Army. 

RECOKD    OF    DECISION. 

The  court,  having  maturely  considered  the  plea  of  the  accused  (together 
with  the  evidence  submitted  in  its  support),  and  the  statement  of  the  judge- 
advocate  in  opposition  thereto,  sustains  the  plea  and  orders  that  the  defend- 
ant be  excused  from  making  further  answer  to  the  — d  specification  of  the 
— d  charge  (or  if  the  plea  be  not  sustained,  the  record  should  state,  after 
the  word  thereto,  "  overrules  the  same  and  directs  the  defendant  to  make 
further  answer  to  the  — d  specification  of  the  — d  charge"). 

Statute  of  Limitations. 

General  Coi:rt-martial  Rooms, 

Fort , , 

,  189—. 

May  it  please  the  Court: 

The  undersigned,  First  Lieutenant  J K ,  Corps  of  Engineers, 

U.  S.  Army,  having  heard  the  charges  and  specifications  read,  says  that  he 
ought  not  to  be  compelled  to  answer  to  the  — d  specification  of  the  — d 
charge,  because  he  says  that  the  offense  therein  alleged  was  committed  on 

the  — th  day  of ,  189 — ,  more  than  two  years  previous  to  the  date  of 

the  order  convening  the  court  for  his  trial,  upon  the  charge  and  specification 
aforesaid  (or,  "  more  tlian  two  years  previous  to  the  date  upon  which  the 
charges  against  him  were  referred  to  the  court  for  trial");  and  this  the 
defendant  is  ready  to  verify.  AVherefore  he  prays  judgment  that  the  — d 
specification  of  the  — d  charge  be  quashed. 

J K , 

First  Lientenaiit,  Corps  of  Engineers ^ 
United  States  Army. 

RECORD    OF    DECISION. 

The  court  having  maturely  considered  the  plea  and  statement  of  the 
accused  (together  with  the  evidence  submitted  in  its  support),  and  the 
statement  of  the  judge-advocate  in  opposition  thereto,  sustains  the  plea  and 
directs  that  the  said  — d  specification  of  the  — d  charge  be  quashed  (or, 
"  overrules  the  plea  and  directs  that  the  accused  make  further  answer  to  the 
— d  specification  of  the  — d  charge"). 


68fi  APPENDIX  G. 


Plea  in  Abatement — Misnomer. 

General  Court-martial  Rooms. 

FOKT ,  , 

May  — ,  189—. 

May  it  please  the  Court  : 

The  undersigned,  Private  Henry  Rhind,  Battery  D,  — th  Regiment  of 
Artillery,  U.  S.  Array,  having  heard  the  charges  and  specifications  read,  in 
wliich  he  is  charged  by  the  name  of  Henry  Ryan,  alleges  that  his  name  is 
Henry  Rhind,  and  that  he  now  is  and  from  his  earliest  childhood  has  been 
known  by  the  name  of  Henry  Rhind ;  and  this  lie  is  ready  to  verify. 

Henry  Rhind, 
Private  Battery  D,  — th  Regiment  of  Artillery y 
United  States  Army. 

Plea  in  Abatement— Misnomer  in  Christian  Name. 

General  Court-martial  Rooms, 

Fort , , 

June  — ,  189 — . 

May  it  please  the  Court  : 

The  undersigned.  Sergeant  Samuel  Jones,  Troop  F,  — th  Regiment  of 
Cavalry,  U.  S.  Army,  having  heard  the  charges  and  specifications  read,  in 
which  he  is  charged  by  the  name  of  William  Jones,  alleges  that  he  was 

baptized  by  the  name  of  Samuel,  to  wit,  in  the  town  of ,  county 

of ,  State  of ,  and  that  he  has  always  since  his  baptism 

been  called  and  known  by  the  Christian  name  of  Samuel,  and  that  he  has 
hitherto  never  been  called  by  the  name  of  William  as  by  the  said  charges 
and  specifications  is  supposed;  and  this  the  undersigned  is  ready  to  verify. 

Samuel  Jones, 
Sergeant  Troop  F,  — th  Regiment  of  Cavalry, 
United  States  Army. 

RECORD    of    decision. 

And  the  court,  having  maturely  considered  the  plea  and  statement  of 
the  accused  (together  with  the  evidence  submitted  in  its  support),  and  the 
statement  of  the  judge-advocate  in  opposition  thereto,  finds  the  true  name 
of  the  defendant  to  be  Samuel  Jones.  It  is  therefore  ordered  that  Samuel 
Jones,  the  true  name  of  the  said  defendant,  be  entered  on  the  record  and 
that  all  further  proceedings  against  him  be  conducted  in  that  name. 

FORMS  OF  SENTENCES. 
DEATH    BY    SHOOTING. 

Form:    And  the  court  does   therefore   sentence   him.   Private   H 

Q ^  Company  D,  — th  Regiment  of  Infantry,  to  be  shot  to  death  with 


FORMS   OF  PLEAS.  687 

mnstetry  at  snch  time  and  place  as  the  reviewing  authority  may  direct,  two 
tliirds  of  the  members  concurring  therein. 

liKATII    BY    IIANOIXa. 

And    the  court  does  therefore   sentence    him,    Private   R T , 

Troop  I),  — th  Jtcginient  of  Cavalry,  to  be  hung  by  the  neck  until  he  is 
dead,  at  such  time  and  place  as  the  reviewing  authority  may  direct,  two 
thirds  of  the  members  concurring  therein. 

DISMISSAL, 

And  the  court  does  therefore  sentence  him.  Captain  T Y ,  — th 

Regiment  of  Artillery,  to  be  dismissed  the  service. 

DISMISSAL    AND    IMPRISONMEXT. 

And  the  court  does  therefore  sentence  him.  Captain  H Y , 

Corps  of  Engineers,  to  be  dismissed  the  service  and  to  be  confined  at  hard 
labor  in  such  place  as  the  reviewing  authority  may  direct  for  the  period  of 
years. 

DISMISSAL   AND    FINE. 

And  the  court  does  therefore  sentence  him.   Captain    G T , 


Ordnance  Department,  to  be  dismissed  the  service,  and  to  pay  to  the  United 
States  a  fine  of dollars,  the  amount  of  his  embezzlement.' 

DISMISSAL,    IMPRISONMENT    AND    FINE, 

And  the  court  does  therefore  sentence  him,  Major  T R ,  Pay- 
master IJ.  S.  Army,  to  be  dismissed;  to  be  imprisoned  at  hard  labor  in  such 
place  as  the  reviewing  autliority  may  direct  for  the  period  of  ten  vears;  and 
thereafter  to  be  further  imprisoned  in  such  place  as  the  reviewing  authority 
may  direct  until  he  shall  refund  to  the  United  States  the  amount  of  his 
embezzlement, dollars  and cents  ($ ).' 

REDUCTION    IN    RANK. 

And   the  court  does  therefore  sentence   him.    Captain   II T 


Signal  Department,  U.  S.  Army,  to  be  reduced  in  rank  so  that  his  name 
shall  be  placed  at  the  foot  of  the  list  of  captains  in  the  Signal  Department 
(or,  "  to  be  reduced  in  rank  so  that  his  name  shall  appear  in  tlie  list  of  cap- 
tains in  the  Signal  Department  next  below  that  of  Captain  Iv S "). 


'  This  form  of  sentence  is  usually  imposed  in  cases  in  which  the  United  States  has 
suffered  a  ci^naiderable  iK'cuuiary  loss  in  consequence  of  the  embezzlement,  larceny,  or 
misappropriation  of  public  money  or  property. 

*  See  note  to  form  next  preceding. 


688  APPENDIX  O. 

SUSPENSION. 

And  the  court  does  therefore  sentence  him,  First  Lieutenant  H — - 

I ^  _th  Regiment  ci  Artillery,  to  be  suspended  from  rank  (or  "from 

rank  and  command,"  or  •'  from  rank,  command,  and  pay  ")  for  the  period 
of years. 

FORFEITURE    OF    PAY. 

And  the  court  does  therefore  sentence  him,  Lieutenant-Colonel  Y 

E ,  — th  Regiment  of  Cavalry,  U.  S.  Army,  to  forfeit  to  the  United 

States  seventy-five  dollars  per  month  of  his  pay  (or,  "  all  pay  except 

dollars  per  month  ")  for  a  period  of months  (or,  "  to  forfeit  to  the 

United  States  all  of  his  pay,  except dollars  per  month,  for  a  period 

of months"). 

CONFINEMENT   TO    LIMITS. 

And   the   court   does    therefore    sentence   him.    Major   T G , 

Ordnance  Department,   U.   S.   Army,  to  be  confined  to  the  limits  of  the 

United  States  Arsenal  at ,  ,  for  the  period  of years 

(or,  "  to  the  limits  of  the  Military  Reservation  of  Fort , ,  for 

the  period"),  etc. 

REDUCTION. 

*  *  *  "  to  be  reduced  to  the  ranks."  ' 

CONFINEMENT. 

*  *  *  <'  to  be  confined  at  hard  labor,  under  charge  of  the  post  guard  (or, 
"  at  the  place  where  his  company  may  be  serving'"),  for (— )  days." 

FORFEITURE. 

*  *  *  ♦'  to  forfeit ( — )  dollars  of  his  pay."  * 

CONFINEMENT    AND    FORFEITURE. 

*  *  *  "  to  be  confined  at  hard  labor,  under  charge  of  the  post  guard, 

for  (— )  months,  and  to  forfeit (— )  dollars  per  month  for 

the  same  period."  ' 

>  In  the  Engineer,  Ordnance,  and  Signal  Departments,  wliere  privates  of  the  first  and 
second  class  are  authorized,  a  private  of  the  first  class  may  be  reduced  to  the  second 
class   the  form  being  "  to  be  reduced  to  a  second-class  private  " 

»  If  it  be  intended  that  the  prisoner  shall  change  station  with  his  company,  the  clause 
above  indicated  may  be  added:  "  at  the  pbice  wln-re  his  company  may  be  serving." 

'  Detention  of  pay  is  no  longer  authorized,  and  the  Act  of  June  16,  1890,  providing 
for  retention  of  four  dollars  ppr  month  of  a  soldier's  pay  during  first  year  of  enlistment 
was  repealed  by  the  Act  of  February  12,  1895. 


FORMX   OF  PLEAS.  68*J 

DISHONORABLE    DISCHARGE    AN'D     FORFEITURE    OF    PAY    AND    ALLOWANCES. 

*  *  *  "  to  be  dishonorably  discharged  the  service  of  tlie  United  States, 
forfeiting  all  pay  and  allowances  due  him."  ' 

DISHONORABLE    DISCHARGE,    FORFEITURE    OF    PAY    AND    ALLOWANCES,    AND 

CONFINEMENT. 

*  *  *  "  to  be  disliononibly  discharged  the  service  of  the  United  States, 
forfeiting  all  jmy  and  allowances  due  liini,  and  to  be  confined  at  hard  labor 
at  such  post  (or  in  such  penitentiary)  as  the  reviewing  authority  may  direct, 
for ( — )  years." 

If  the  period  of  confinement  is  less  than  one  year,  such  a  sentence  should 
read:  *  *  *  "and  be  confined  at  hard  labor,  under  charge  of  the  post 
guard,  for ( — )  months."  ' 

'  The  clause  "or  to  become  due,"  so  frequent!}'  added  after  "allowances  due,"  in 
such  sentences  is  superfluous,  for  the  reason  Hint  the  forfeiture  takes  effect  on  the  date  of 
the  order  promultT'itint;:  the  sentence.     See  Dig.  J.  A.  Geu.,  i'Vd,  par.  20. 

*  See  note  2,  page  688,  ante. 


APPENDIX  H. 

FORMS   OF  RECORDS. 

EECORD   OF  A   GENERAL   COURT-MARTIAL. 
FORM   FOR   RECORD." 


Page  l.» 
{In  Margin.)* 


Case  1. 


Proceedings  of  a  general   court-martial  which  convened  at 
-,  pursuant  to  the  following  order:  * 


{Here  insert  a  literal  copy  of  the  order  appointing  the  court,  and,  folloW' 
ing  it,  copies  of  any  sul)seqiiejit  orders  modifying  the  detail.) 


Headquarters  Department  of 


,  189—. 

Special  Orders  ) 
No. .         S 

A  general  court-martial  is  appointed  to  meet  at ,  ,  at 

— .M.,  on ,  189 — ,  or  as  soon  thereafter  as  practicable,  for  the  trial 

of  Captain  E R ,  — th  Regiment  of  Artillery  (or,  "of  Captain  E 

R ,  — th  Regiment  of  Artillery,  and  such   other  persons  as  may  be 

properly  brought  before  it"),   (or  "of  such  persons  as  may  be  properly 

brought  before  it "). 

'  See  the  chapter  entitled  Tim  Record,  and  the  title  "  Record  of  Proceedings  "  in  the 
Manual  for  Courts-martial.  The  record  will  be  clear  and  legible,  and  if  practicable, 
without  erasure  or  interlineation.  If  a  typewritten  record  is  prepared,  but  one  side  of  the 
sheet  should  be  used. 

*  The  pages  of  tlie  record  will  be  numbered  and  margins  of  one  inch  will  be  left  at 
the  top,  bottom,  and  left  side  of  each  page.     Manual  for  Courts-marti;il,  119,  note  1. 

*  Words  inclosed  in  parentheses  (  )  or  brackets  [  ]  are  simply  explanatory,  and  will 
noi  be  copied  in  the  record.     Ibid.,  note  2. 

*  "  Every  party  tried  by  a  general  court-martial  shall,  upon  demand  thereof,  made  by 
himself  or  by  any  person  in  his  behalf,  be  entitled  to  a  copy  of  the  proceedings  and  sen- 
tence of  such  court."  Q14th  Article  of  War.)  Applirations  for  copies  under  this  Article 
will  be  addressed  to  the  Judge- Advocate  General.     Par.  894,  A.  R.  of  1895. 

690 


FORMS   OF  RECORDS.  091 

DETAIL    FOK    THE    (01  KT. 

Major ,  5th  Cavulry. 

Ca])taiu ,  "^d  Artillery. 

Captain ,  Asi^istaut  Surgeon. 

1st  Lieutenant ,  lUtli  Inlantry. 

1st  Ijieu tenant ,  oth  Cavalry. 

2d  Lieutenant ,  2d  Artillery. 

2d  Lieutenant ,  10th  Infantry. 

1st  Lieutenant ,  5th  Cavalry,  judge-advocate. 

{If  less  than  thirteen  members  are  detailed,  the  order  will  slatt :) 

A  greater  number  of  officers  cannot  be   assembled    without   manifest 

injury  to  the  service. 

{If  the  case  he  one  requiring  an  immediate  example,  the  following  clause 

should  be  inserted  at  this  jioint :) 

The  court  is  authorized  to  sit  without  regard  to  hours.' 
{In  case  travel  is  tiecessary,  the  folloioing  sentence  will  he  added  :) 
The  journeys  required  in  complying  with  this  order  are  necessary  for  the 
public  service. 

By  command  of  Brigadier-General . 


Assistant  Adjutant- Gerieral. 

Fort ,  . 

,  189—. 


The  court  met  pursuant  to  the  foregoing  order  at o'clock  — .m.' 

PRESENT." 

Major , ,  5th  Cavalry. 

Captain ,  Assistant  Surgeon. 

1st  Lieutenant ,  10th  Infantry. 

1st  Lieutenant    ,  5th  Cavalry. 

2d  Lieutenant ,  2d  Artillery. 

1st  Lieutenant ,  5th  Cavalry,  judge-advocate. 

'  "Proceedings  of  trials  shiiU  be  carried  on  only  between  the  bours  of  eisrbt  in  ibe 
morning  ami  three  in  tlie  iifternooii.  except  in  cases  wbi(  li.  in  tbe  opinion  of  the  officer 
appointine  Ilie  court,  require  ininiediate  example."     !»4th  Article  of  War. 

'  In  tbe  record  i)f  tbe  luoceciiings  of  a  court-martial  at  its  organization  for  tbe  trial  of 
a  case  the  officers  detailed  as  members  and  judge-advocate  will  be  noted  by  name  as 
present  or  absent.  In  the  record  of  the  proceedings  of  subseipient  sessions  tiie  following 
form  of  words  will  be  used,  subject  to  such  modifications  as  tbe  facts  may  require  : 
"  Present,  all  ibe  membeis  of  tbe  court  and  the  judge-advocate."  When  tbe  absence  of 
an  officer  who  has  not  qualified,  or  who  has  been  relieved  or  excused  as  a  member,  has 
been  accounted  for,  no  further  noie  will  be  made  of  it.* 

*  Manual  for  Courts-martial,  p.  120;  Dig.  J.  A   Gen  ,  041.  par.  rf  ;  642.  par.  e. 


692  APPENDIX  H. 

ABSENT. 

Captain ,  3d  Artillery. 

2d  Lieutenant ,  10th  Infantry. 

{If  the  cause  of  absence  is  knoiun,  it  will  be  recorded;  if  unknown,  it 
will  be  so  stated.)' 

The  court  then  proceeded  to  the  trial  of  Private ,  Battery  — , 

— til  U.  S.  Artillery,  who,  having  been  brought  before  the  court,  stated 
that  lie  did  not  desire  counsel;  (or)  introduced as  counsel. 

[Repokter.]" 

I was  duly  sworn  as  reporter.' 

The  order  convening  the  court  was  read  to  the  accused,  and  he  waa 
asked  if  he  objected  to  being  tried  by  any  member  present  named  therein; 
to  which  he  replied  in  the  negative. 

[Challenges.] 

(or)  that  he  objected  to on  the  following  grounds: 

{Insert  objections.) 

The  challenged  member  stated : 

{Itisert  the  statement  of  the  challenged  member,  who  sho^ild  altvays  be 
requested  to  respond  to  the  challenge  and  inform  the  court  upon  its  merits. 
Should  the  accused,  after  this  statement,  desire  to  put  the  challenged  mem- 
ber upon  his  voir  dire,  the  record  should  coyitinue :) 

The  accused  having  requested  that  the  challenged  member  be  sworn 

upon  his  voir  dire,* was  duly  sworn  by  the  judge-advocate  and 

testified  as  follows:" 

{At  the  close  of  the  examination  of  the  member,  if  the  court  desires 
the  testimony  to  be  read,  or  if  the  member  so  requests,  the  record  should 
continue :) 

The  testimony  of  the  challenged  member  was  read  to  him,  and  was 
by  him  pronounced  correct. 
{or)  corrected  as  follows: 

{Insert  corrections. ) 

'  It  is  the  duty  of  tlie  judge-advocate  to  ascertain  if  possible  the  cause  of  absence. 
If  a  member  is  absent  by  order,  tlie  number  and  date  of  order  will  be  given  ;  if  absent 
sick,  a  surgeon's  certificate  of  sickness  and  inability  to  attend  will  be  furnished  by  the 
absent  member  and  appended  to  the  record.     Manual  for  Courts-martial,  121,  note  1. 

'  To  facilitate  reference  to  the  record,  sub-heads  entitled  "reporter,"  "challenge," 
etc.,  are  inserted  and  followed  by  vertical  marginal  lines.  To  use  form  in  case  no  re- 
porter is  employed,  follow  form  to  "  reporter,"  and  then  omit  as  far  as  the  vertical  mar- 
ginal line  under  "  reporter  "  extends.  In  like  manner  omit  when  necessary  for  other 
sub-heads,     /itd.,  note  2. 

*  The  reporter  must  be  sworn  in  each  ca.se.  For  form  of  oath,  see  p.  29,  par.  4, 
Manual  for  Courts-martial.     Ihid. .  note  ?>. 

♦  For  form  of  oath  see  page  29,  par.  6,  Manual  for  Courts-martial. 

'  The  form  of  examination  should  besimilarto  thatgiven  for  witness  for  theprosecution, 
page  694,  infra.  The  accused  slioidd  first  question  the  member,  after  which  the  judge- 
advocate  and  court  may  put  such  questions  as  they  may  deem  pertinent.  Ibid.,  122,  note  1. 


FORMS  OF  RECORDS.  693 

The  challenged  member,  the  accused,  and  judge-advocate  then  with- 
drew, and  the  court  was  closed,  and  on  being  opened  the  president 
announced  in  their  presence  that  the  objection  of  the  accused  was  not 

sustained;'    (or)    that   the    objection   was   sustained.      then 

withdrew. 

The  accused  was  asked  if  he  objected  to  any  other  member  present;* 

to  which  he  replied  in  the  negative ;   (or)  that  he  objected  to 

on  the  following  grounds: 

{Insert  objection  in  full  and  record  as  before.) 
The  members  of  the  court  and  the  judge-advocate  were  then  duly  sworn.* 

[Interpreter.] 

(If  an  interpreter  is  required,  he  should  now  be  i7itroduced,  and  sworn 
to  the  faithful  performance  of  his  duties.) 

[Delay.] 

{If  delay  is  desired  for  cause  kyiown,  application  should  now  be  made 
for  a  continuance  binder  Article  93,  and  the  proceedings  of  the  court 
thereon  recorded.     If  no  delay  is  requested,  the  record  should  cotitinue  :) 
The  accused  was  then  arraigned  apon  the  following  charges  and  specifi- 
cations : 

Charge  I. . 


Specification  1st. 

Specification  2d. 

Charge  II. . 

[Plea  in  Bar.] 

To  which  the  accused  submitted  the  following  special  plea  in  bar  of 

trial:* 

{or) 

To  which  the  accused  pleaded  as  follows : 

To  the  1st  specification,  1st  charge:  "  Guilty;  "  (or)  "  Not  guilty." 

To  the  second  specification,  1st  charge:  "  Guilty;  "  {or)  "  Not  gnilty." 

To  the  Ist  charge:  "  Guilty;  "   {or)  "  Not  guilty." 

To  the  first  specification,  2d  charge,  etc. 

Sergeant  John  Jones,  Co. , Infantry,  a  witness  for  the  prosecu- 
tion, was  duly  sworn  and  testified  as  follows: 


'  In  case  of  a  tie  vote,  the  motion  to  excuse  not  being  sustained,  the  challenged  mem- 
ber  is  not  excused. 

»  Only  one  member  at  a  time  can  be  challenged,  and  a  record  of  the  proceedings  in  each 
case  will  be  mtide  in  the  form  indicated  above.     Manual  for  Courts-martial,  122.  note  5. 

*  Whenever  the  same  court-martial  tries  more  than  one  prisoner  on  separate  and 
distinct  charges,  the  court  will  be  sworn  at  the  commencement  of  each  trial  and  separate 
proceedings  in  each  case  will  be  prepared.     J  bid.,  note  C. 

*  If  a  special  plea  is  made,  the  plea,  the  reply  of  the  judge-advocate,  and  the  action 
of  the  court  thereon  will  be  fully  stated  and  recorded.  If  the  plea  is  submitted  in 
writing,  it  will  be  signed  by  the  accused  and  attached  to  the  record  as  an  appendix.  For 
forms  of  the  several  pleas,  see  Appendix  G. 


09:t  APPENDIX  H. 

DIRECT    EXAMINATION. 

Questions  by  the  judge-advocate: 

Q.  Do  you  know  the  accused  ?     If  so,  state  who  he  is. 

A.  I  do;  Private ,  Battery , Artillery. 

{The  succeeding  questions  of  the  judge-advocate  and  their  answers  should 
follow  in  order.y 

CROSS-EXAMINATION. 

Questions  by  the  accused: 

Q. ? 

A. . 

(If  the  arcHsed  declines  to  cross-examine  the  icitness,  the  record  should 

state  :) 

The  accused  declined  to  cross-examine  the  witness. 

RE-EXAMINATION. 

Questions  by  the  judge-advocate: 

Q- ? 

A. . 

EXAMINATION    BY    THE    COURT. 

Q. ? 

A. . 

[Objection  to  Question.]' 

}        Question  by  a  member:  ? 

I        To  this  question  the  accused  (or  party  objecting)  objected  as  follows: 
( Insert  objection . ) 
To  which  the  member  replied : 
{Insert  reply.) 

The  accused  and  judge-advocate  withdrew  and  the  court  was  closed, 
and  on  being  opened  the  president  announced  in  their  presence  that  the 
objection  was  sustained,     {or)  was  not  sustained. 
( In  the  latter  case  the  record  should  continue :) 
The  question  was  then  repeated  by  the  judge-advocate. 
A. . 


'  The  record  should  set  forth  fully  all  the  testimony  introduced  upon  the  trial,  the 
oral  porliou  as  nearly  as  practicable  in  the  precise  words  of  the  witness.  If  the  court 
should  decide  to  expunge  any  part,  it  will  not  be  literally  expunged  or  omitted  from  the 
record,  but  will  not  be  thereafter  considered  as  part  of  the  evidence.      Dig.  J.  A.  Gen., 

644,  par.  h.  ,  u      i.     •   j 

°  If  a  question  put  by  a  member  is  objected  to  by  another  member,  or  by  the  judge- 
advocate  or  the  accused,  and  the  objection  is  sustained,  it  will  be  recorded  as  a  question 
by  a  member,  and  not  answered;  if  the  objection  is  not  sustained,  it  will  be  recorded  as  a 
question  by  the  court,  repeated  by  the  judge-advocate,  and  must  be  answered.  If  a  ques- 
tion is  objected  to  by  any  one,  at  any  time  during  the  trial,  the  above  method  of  recording 
the  action  of  the  court  will  be  followed.     Manual  for  Courts-martial,  134,  note  1. 


FORMS  OF  RECORDS.  695 

{If  the  court  deems  it  proper  to  hear  the  testimony  of  the  witness  read,  or 
if  the  witness  request  such  reading,  the  fact  will  be  noted  in  the  record  as 
follows .') 

By  directiou  of  the  court  (or  "  at  the  request  of  the  witness  ")  the  testi- 
mony of  the  witness  was  read  over  to  him,  and  was  by  him  pronounced 
correct. 
{or)  corrected  as  follows : ' 

{State  corrections.) 

(  When  the  testimony  i7i  behalf  of  the  prosecution  has  all  been  received,  the 
record  should  continue:) 

The  judge-advocate  announced  that  the  prosecution  here  rested. 

(//'  the  coicrt  adjourns  to  meet  the  following  day  {or  on  a  subsequent  day), 
the  record  should  continue:) 

The  court  then,  at o'clock  — .m.,  adjourned  to  meet  at o'clock 

— .M.,  to-morrow  (or  at o'clock  — .m.,  on the  — th  instant. 

C D , 

Isi  Lieut. , 

Judge- Advocate.  * 

Fort , 

-,  189—. 


The  court  met,  pursuant  to  adjournment,  at o'clock,  — .m. 

PRESENT. 

{If  the  entire  membership  be  present  the  record  should  continue.) 

All  the  members  of  the  court  and  the  judge-advocate.* 

The  accused,  his  counsel,  and  the  reporter  were  also  present. 

{If  the  proceedings  of  the  previous  day  are  required  by  the  court  to  be 

read,"  the  fact  will  be  recorded  in  the  following  form  :) 
The  proceedings  of were  read  ^  and  approved. 

{or)  were  corrected  as  follows: 

'  The  reading  over  of  the  testimony  to  the  witness  after  his  examination  has  been 
comiileted  is  no  lunger  required.  See  Circular  No.  27,  A.  G.  O.  1897;  see,  also,  note 
2,  post. 

''  If  tlie  witness  finds  that  his  testimony  has  been  erroneously  recorded,  the  court  will 
permit  him  to  make  such  cnrrections  therein  as  are  necessary  to  make  the  testimony  aa 
recor<ie<l  conform  to  the  testimony  as  given.  If  the  witness  ilesires  to  modify  his 
testimony  in  a  material  particular,  the  court  may,  in  its  discretion,  permit  him  to  do  so; 
but  the  original  testimony  will  not  be  e.xpunged,  and  the  matter  submitted  in  the  way  of 
modification  or  explanation  will  be  so  recorded  as  to  show  in  what  particulars  the  testi- 
mony as  originally  given  has  been  modified.     See  Dig.  J.  A.  Gen.,  753.  par.  14. 

'The  proceedinsis  of  each  day  are  authenticated  by  tlie  signature  of  the  Judge- 
Advocate      Paragraph  954.  Army  Regulations  of  1895. 

*  If  there  are  absentees  the  form  indicated  at  the  beginning  of  the  trial  should  be  read. 
See  note  2,  page  691,  supra. 

*  The  reading  over  of  the  testimony  taken  on  the  previous  day  is  no  longer  required. 
See  Circular  No.  27.  A  G.  O.  1897,  which  contains  the  requirement  that,  "the  reading 
of  previous  proceedings  and  of  testimony  for  approval  will  be  dispensed  with,  unless, 
for  special  reason,  such  reading  be  considered  necessary  by  the  court." 


696  APPENDIX  H. 

{hi  the  latter  case  enumerate  corrections,  giving  the  page  and  line  in 
which  they  occur.) 

Corporal  John  Smith,  Co. ,  — th  Infantry,  a  witness  for  the  defense, 

was  duly  sworn  and  testified  as  follows: 

DIRECT    EXAMINATION. 

Question  by  the  judge-advocate :  Do  you  know  the  accused?  If  so,  state 
who  he  is.' 

A. . 

Questions  by  the  accused: 

Q- v 

A. . 

{The  examination  should  be  conducted  as  incase  of  a  wittiess  for  the 
prosecution,  the  judge-advocate  cross-examining,  and  the  accused,  if  he  so 
desires,  re-examining  the  witness.)  . 

{Should  the  accused  wish  to  testify  in  his  own  behalf,  the  record  will  con- 
tinue :) 

The  accused,  at  his  own  request,  was  duly  sworn  as  a  witness,  and  testi- 
fied as  follows: 

Q. ? 

A. . 

{The  examiyiation  of  the  accused  should  he  conducted  in  the  same  manner 
as  that  of  any  other  witness. ) 

{If  the  accused  has  no  other  witness  to  call,  the  record  should  contitiue :) 

The  accused  had  no  further  testimony  to  offer  and  no  statement  to  make. 
{or)  having  no  further  testimony  to  offer,  made  the  following  verbal  state- 
ment in  his  defense. 

{or)  having  no  further  testimony  to  offer,  submitted  a  written  statement  in 
his  defense,   which  was  read  to  the  court,   and  is  hereto  appended  and 
marked  A.' 
{or)  requested  until o'clock  — .m.  to  prepare  his  defense. 

{If  the  court  takes  a  recess  during  the  time  asked  for,  the  record  will 
continue :) 

The  court  then  took  a  recess  until o'clock  — .m.  ;  at  which  hour 

the  members  of  the  court,  the  judge-advocate,  the  accused,  his  counsel,  and 
the  reporter  resumed  their  seats. 


'  Though  this  is  a  -witness  for  tlie  defense,  the  judf2:e-advocate  -will  ask  the  preliminary 
question  for  the  purpose  of  determining  his  identification  of  the  accused. 

»  All  documents  and  papers  made  part  of  the  proceedings,  or  copies  of  them,  will  be 
appended  to  the  record  in  the  order  of  their  introduction,  after  the  space  left  for  the 
remarks  of  the  reviewing  authority,  and  marked  in  such  a  manner  as  to  afford  easy 
reference.  It  is  not  necessary  to  encumber  a  record  by  spreading  upon  it  documents  or 
other  writings,  or  matter  excluded  by  the  court.  The  record  should  simply  specify  the 
character  of  the  writings  and  the  grounds  upon  which  they  were  excluded  by  the  court. 
Dig.  J.  A.  Gen.,  651,  par.  14. 


FORMS   OF  HECOIWS.  C97 

{Or,  if  the  court  has  other  business  before  it,  the  record  may  continue.) 

The  court  then  pro<;eeded  to  other  business,  and  at o'clock  — .M. 

resumed  the  trial  of  this  case;  ut  which  hour,  etc. 

The  accused  submitted  his  defense,  which  was  read  to  the  court,  and  is 
hereto  a})pended  and  marked  B.' 

The  judge-advocate  submitted  the  case  without  remark. 
(or)  replied  as  follows :' 

{Insert  reply.) 
{or)   submitted  and  read  to  the  court  a  written   reply,  which   is  hereto 
appended  and  marked  C. 

The  accused  and  his  counsel  and  judge-advocate  then  withdrew  and  the 

court  was  closed,  and  finds  the  accused,  IVivate ,  Battery  — ,  — th 

U.  S.  Artillery: 

Of  the  1st  specification,  1st  charge:  "  Guilty;  "  {or)  "  Not  guilty." 

Of  the  2d  specification,  1st  charge:  "Guilty,  except  the  words' 

,'  and  of  the  excepted  words  Not  guilty." 

Of  the  first  charge:  "  Guilty;  "  {or)  "  Not  guilty;  "  {or)  '*  Not  guilty, 
but  guilty  of,  etc., ." 

Of  the  1st  specification,  2d  charge,  etc. 

[Previous  Convictions  avhere  the  Accused  is  Found  Guilty.] 

{If  the  offense  is  of  such  character  as  to  admit  of  evidence  of  previous 
convictio7is,  and  the  accused  is  found  guilty,  the  record  should  continue:) 

The  judge-advocate  and  accused  were  then  recalled  and  the  court 
opened;  the  judge-advocate  then  stated  that  he  had  no  evidence  of  pre- 
vious convictions  to  submit. 

{or)  the  judge-advocate  then  read  the  evidence  of  previous  convictions  * 
hereto  appended  and  marked  D,  E,  etc. 

{If  the  accused  has  any  statement  to  make  in  regard  to  his  previous 
convictions,  it  tvill  be  recorded.) 

The  accused  and  judge-advocate  then  withdrew  and  the  court  was 

closed,  and  sentences  him.  Private ,  Battery ,  — th  U.  S. 

Artillery, 


'  The  statement  of  the  accused,  or  arp^ument  in  his  defense,  and  all  pleas  in  bar  of 
trial  or  in  abatement,  when  in  writincr,  should  be  sicrned  by  the  accused,  referred  to  in 
the  proceedings  as  having  been  submitted  by  him,  and  appended  to  the  record,  whether 
he  is  defended  by  counsel  or  not.     For  fornis  of  pk-as  see  pp.  68:^-686,  anU. 

'  The  judge-advocate  is  entitled  by  usage  to  sum  \ip  the  ca«e  and  present  an 
argument  at  the  conclusion  of  the  trial^  even  though  the  accused  declines  to  make  sn 
argument  or  to  submit  a  statement.     Dig   .T.  A.  Gen..  711.  par.  4. 

'  See  "  Previous  Convictions."  p.  147,  iupra.  When  the  proof  produced  i«  the  copy 
furnished  to  the  company  or  other  commander,  in  accordance  with  par  980,  A.  R  of 
1895.  it  will  be  returned  to  him  and  a  copy  of  it  attached  to  the  record  of  the  general, 
regimentfil,  or  garrison  court  trying  the  case.     Par.  929.  A.  R.  of  1895. 


698  APPENDIX  H. 

[Xo  Previous  Convictions,  or  Accused  Acquitted.] 
1        (//"  the  offense  is  not  of  such  character  as  to  admit  of  evidence  of  pre- 
vious convictions,  or  if  the  accused  is  acquitted,  the  record,  after  the 
'  findings  are  stated,  should  continue :) 

And  the  court  does  therefore  sentence  him,  etc. 

{or)  does  therefore  acquit  him,  Piivate ,  Battery  ,  — th 

U.  S.  Artillery. 

Tlie  judge-advocate  was  then  recalled  and  the  court  at .m.  pro- 
ceeded to  other  business. 

(or)  adjourned  until m.,  the  —  inst. 

(or)  adjourned  to  meet  at  the  call  of  the  president.' 

{or,  on  completion  of  the  trial  of  the  last  case  before  the  court),  adjourned 

sine  die. 

A B , 

Major , 

President. 

C D -, 

1st  Lieut.  , 


Judge- Advocate. 

{At  least  two  Uanh  pages  will  he  left  after  the  adjournment  for  the  deci- 
sion and  orders  of  the  reviewing  authoi'ity.) 

Form  of  Brief. 
{The  papers  forming  the  complete  record  will  he  fastened  together  at  the 
top,  and  the  record  folded  in  four  folds,  and  hriefed  on  the  first  fold  as 
follows  ;)* 


Private,  Co. 


Trial  by  general  court-martial 

at ; 

commencing ,  18 — ; 

ending ,  18 — . 

President  : 

Major , 


Judge- Advocate 
1st  Lieut.  


1  The  hour  of  adjoumment  will  be  stated,  unless  the  court  is  authorized  to  sit  without 
regard  to  hours. 

-  When  the  reoord  is  completed,  the  judee-ndvocate  will  forward  it  without  delay  to 
the  convening  authority.     Par.  955,  A.  R.  of  1895. 


FORMS  OF  RECORDS.  699 

Form  for  Revision  of  Record.' 

FoBT  .  . 


— ,  18'^—. 


The  court  reconvened  at o'clock  — .m.,  pursuant  to  the  following 

order: 

{Insert  copy  of  order.) 
(or)  pursuant  to  the  following  indorsement 

{Insert  copy  of  indorsement.) 


presext.* 


ABSENT. 

{Insert  names  of  absentees^  ayid  state  cause  of  absence,  if  known.) 

The  judge-advocate  read  to  the  court  the  foregoing  order. 
{or)  the  foregoing  indorsement  of  the  convening  authoritv. 

The  judge-advocate  then  withdrew,  and  the  court  was  closed  and,  having 
revoked  its  former  findings,  finds  the  accused,  etc. 
{or)  revokes  its  former  sentence,  and  sentences  the  accused,  etc. 
(or)  respectfully  adheres  to  its  former  findings  and  sentence. 
{or)  amends  the  record  by,  etc' 

The  judge-advocate  was  then  recalled  and  the  court  at .m.,  etc. 

A B . 

Major , 


President. 

■  D , 

1st  Lieut.  , 


.Ti{dae-Advorafe. 
{The  record  of  revision  wiU  he   appended  to  the  original  proceedings  and 
the  whole  indorsed  and  forwarded  as  before.) 


>  Pee  "  Revision  of  Record,"  pp.  158-160,  supra. 

»  If  the  findinffs  and  sentence  are  to  l>e  considered,  all  the  members  who  voted  on 
them  should  be  p'resent  if  possible.  At  least  five  members  of  the  court  who  acted  upon 
the  trial  must  and  the  judse-advocate  should,  be  present  at  the  proceedinsi:  in  revision; 
but  it  is  in  eeneral  neithe>  necessary  nor  desirable  that  the  accused  should  be  presenU 
Manual  for  Coiirts-marrial.  p.  130.  note  2. 

»  For  method  of  amending  the  record,  see  p.  159,  tupra. 


This  form  is  intended  to  answer  the  purposes  of  a  charge  sheet,  which, 

when  completed  by  the  Summary  Court  and  the  commanding  officer,  will 

become  the  complete  record  of  the  trial.     The  officer  preferring  the  charges 

will  enter  on  this  form  the  name  of  the  accused,  the  list  of  witnesses,  and 

the   charges  as  called  for  by  the   headings,    together  with    his   signature 

thereto;   and,  in  proper  cases,   the  accused  will  be  required   to  sign  the 

statement  showing  whether  or  not  he  consents  to  trial  by  summary  court — 

the  necessary  alteration  being  made  in  the  certificate  if  he  does  not  consent. 

The  case  will  then  be  submitted  in  the  usual  way  for  trial.     Each  sheet  is 

intended  for  one  case  only,  and  will  be  given  a  serial  number  in  the  order 

of  trial ;  and  they  will  be  bound  in  numerical  order  in  books  of  convenient 

size,  each  case  being  added  to  the  book  when  completed  by  pasting  or  other 

method,  the  margin  at  the  left  being  intended  for  this  purpose.     Paper 

binding  will  be  sufficient,  a  good  quality  of  tough  and  heavy  paper  being 

used  therefor. 

701 


APPENDIX  I. 
RECORD   OF  A  SUMMARY  COURT, 


FORM  FOR  RECORD. 


Eecord  of  a  summary  court  at 

Orders  No.  ,  Headquarters 


No.  9f  Case- 
-,  appointed  by  — 


190—. 


Name,  Rank, 
Company,   and 

Regiment, 
and  List  of 

Witnesses. 


Witnesses: 


Specification, 

with  Signature 

of  OlBcer 

Preferring 

Charges. 


.lieg't. 


bp 

a 


O  OJ   c 

fc.  =  "= 

o.2r 

=  £  S 


Sentence,  with 

Signature  of 

Trial  Officer, 

and  Consent  to 

Trial,  if  Given. 


I  hereby  con- 
consent  to 
trial  V)y  Sum- 
mary Court 
on  those 
charges. 

Private  Co  . . . 


Action  of  Com- 
manding Offi- 
cer, with  Date 
and 
Signature. 


>soTK.— This   form   may  be  used  to  furnish  copies  of  the  record,  the  same  to  be 
certified  to  be  "  a  true  copy  "  by  the  post  commander  or  adjutant. 

MONTHLY  REPORT  OF  SUMMARY-COURT   CASES. 

Report  of  cases  tried  by  summary  court  at  , ,for  the  month 

of ,  1^9—. 


u 


Name,  Rank, 
Company, 

and 
Regiment. 


c3 

o  t: 
0.2 


Synopsis  of 
Specificalion. 


to 

a 

Number  of 

Previous 
Convictions. 

Sentence. 
(If  mitigated,  give  sentence 
as  mitigated  only.     Signa- 
ture of  trial  officer  not  to 
be  copied. ) 


ro2 


APPENDIX  K 
GARRISON  AND  REGIMENTAL   COURTS. 

RECORD   OF  A   GARRISON  COURT-MARTIAL.' 

Case . 

Proceedings  of  a  garrison  conrt-martial  convened  at ,  pursuant 

to  the  following  order: 

Fort , 

,  18—. 


Ordeks,    I 

No. .  S 

A  garrison  court-martial  will  convene  at  this  post  at o'clock  a.m., 

on ,  189 — ,  or  as  soon  thereafter  as  practicable,  for  the  trial  of 

Private ,  Company  ,  — th  lufantry,  he  having  objected  to 

trial  by  summary  court. 

{or)  the  post  (or  other)  commander  being  the  accuser  and  the  only  officer 

present  with  the  command.* 

DETAIL   FOR   THE    COURT. 

Captain . 


1st  Lieutenant . 

2d  Lieutenant 

2d  Lieutenant ,  judge-advocate. 

By  order  of 
(Signed)  


1st  Lieutenant 


Post  Adjutant. 

Fort , 

.  18-. 


The  court  met,  pursuant  to  the  foregoing  order,  at o'clock  — .m.' 

'  The  form  of  record  for  a  garrison  court-innrtial  (iiffers  from  that  for  a  seuenil  court- 
martial  onl}-  in  respect  to  the  form  of  the  ordt-r  appointing  the  court.  The  form  here 
given  is  tliat  for  a  case  in  wliich  a  plea  of  "  Guiliy  "  is  entered  ;  if  the  i>risoi;er  pleads 
"Not  Guilty."  or  makes  a  special  plea,  the  form  for  record  of  a  general  court  will  be 
followed.     Manual  for  Courts-martial,  134,  noli  1. 

'  See  page  213,  supra. 

'  If  the  order  contains  the  clause,  "  The  court  may  sit  without  regard  to  hours,"  the 
hours  of  meeting  and  adjournmeut  need  not  be  recorded. 

703 


ir 


04  APPENDIX  K. 


PRESENT. 


Captain 

lat  Lieutenant 
2d  Lieutenant 


2(i  Lieutenant ,  judge-advocate. 

The  court  then  proceeded  to  the  trial  of  Private ,  Company 

-,  — th  Infantry,  who  was  brought  before  the  court,  and  having  heard 


the  order  convening  it  read,  was  asked  if  he  had  any  objection  to  being  tried 
by  any  member  named  therein ;  to  which  he  replied  in  the  negative. 

The  members  of  the  court  and  the  judge-advocate  were  then  duly 
sworn,  and  the  accused  was  arraigned  upon  the  following  charge  and  speci- 
fication: 

Charge. 

Specificaiion. . 


To  which  the  prisoner  pleaded: 

To  the  specification:  "  Guilty." 

To  the  charge:  "Guilty." 

The  judge-advocate  announced  that  the  prosecution  here  rested. 

The  prisoner  stated  that  he  had  no  testimony  to  offer  or  statement  to 
make. 

The  accused  and  judge-advocate  then  withdrew,  and  the  court  was  closed 
and  finds  the  accused,  Private ,  Company ,  — th  Infantry: 

Of  the  specification :  "Guilty." 

Of  the  charge:  "Guilty." 

The  judge-advocate  and  the  accused  were  then  recalled  and  the  court 
opened;  the  judge-advocate  stated  that  he  had  no  evidence  of  previous  con- 
victions to  submit. 

(or)  read  the  evidence  of  previous  convictions  hereto  appended  and  marked 
A,  B,  etc. 

The  accused  and  judge-advocate  then  withdrew,  and  the  court  was  closed 
and  sentences  him,  Private ,  Company ,  — th  Infantry,  etc. 

The  judge-advocate  was  then  recalled,  and  the  court  at .m.,  etc. 

A B , 

Captain , 


President. 

C T) , 

2d  Lieut.  , 


Judge- Advocate. 

(A  sine  die  adjournment  will  be  added  to  the  last  case  before  the  court, 
and  the  record  of  each  case  folded  and  indorsed  in  the  same  manner  as  that 
for  a  general  court-martial. ) 


QARHISON  AND   REGIMENTAL   COURTS.  705 

Remarks  on  the  Record. 

1.  The  decision  and  orders  of  the  post  commander,  properly  dated  and 
over  his  otticial  signature,  will  follow  immediately  after  the  sentence, 
adjonrnment,  or  other  final  proceeding  of  the  conrt  in  the  case. 

2.  "  The  complete  proceedings  of  a  garrison  or  regimental  court  will  be 
transmitted  without  delay  by  the  post  or  regimental  commander  to  depart- 
ment headquarters."  ' 

KECOIiD   OF  A  REGIMENTAL   COURT  MARTIAL.' 

Case . 


Proceedings  of  a  regimental  court-martial  convened  at 
pursuant  to  the  following  order: 

Fort  — 


189—. 


Orders,  \ 

No. .  f 

A  regimental  court-martial  will  convene  at  this  post  at o'clock 

A.M.,  on ,  189 — ,  or  as  soon  thereafter  as  practicable,  for  the  trial 

of  Private ,  Company ,  — th  Infantry,  he  having  objected  to 

trial  by  summary  court. 

[or)  the  post  (or  other)  commander  being  the  accuser  and  the  only  officer 

present  with  the  company.' 

DETAIL    FOR    THE    COURT. 

{Complete  record  as  in  case  of  a  garrison  or  general  court.) 

FORM  FOR  ORDER  OF  PROMULGATION. 

CASE   OF    A    COMMISSIONED    OFFICER. 

Headquarters  of  the  Army, 

Adjutant-General's  Office, 

Washington ,  189 — . 

General  Orders,  ) 
No. .  S 

1.   Before  a  general  court-martial  which    convened  at  Fort  , 

,  pursuant   to  paragraph   1,   Special  Orders   No.   36,    Headquarters 

Department  of  ,  dated ,   189 — ,  and  of  which  Colonel 

T \\ ,  — th  Regiment  of  Artillery,  was  President,  and  Lieutenant 

Colonel  K E ,  Deputy  Jndge-Advocate  (xeneral,  was  judge-advocate, 

was  arraigned  and  tried  : 

Captain  G R.  T ,  — th  Regiment  of  Infantry. 

1  Piir.  956.  A  R.  of  1895. 

'  Tlie  form  of   record   for  a  regimental   court  difTers  from  that  for  a  garrison  or  a 
general  covut  only  in  respect  to  the  order  convening  the  court. 
'  See  page  216,  supra. 


706  APPENDIX  K. 


Charge. 

Specification  1st. 
Specification  2d. 
etc. 


Here  insert  the  charges  and  specifications  in  full. 
If  for  any  reason  it  appears  to  be  improper  to  pub- 
lish a  specification,  on  account  of  its  subject-matter, 
the  entry  can  be  made,  opposite  the  number,  that 
"  this  specification  will  not  be  published." 


PLEA. 

Charge  I. 

To  the  1st  Specification:  ''  Not  guilty." 

To  the  2d  Specification:  "  Not  guilty." 

To  the  3d  Specification :  "Guilty." 

To  the  4th  Specification:  "  In  bar  of  trial." 

To  the  5th  Specification:  "  Guilty." 

To  the  Charge:  "  Not  guilty." 

Charge  II. 
To  the  1st  Specification:  "  Not  guilty." 
To  the  2d  Specification:  "  Not  guilty." 
To  the  3d  Specification:  "  Not  guilty,"  etc. 
To  the  Charge:  "  Not  guilty,"  etc. 

FINDING. 

The  court,  having  maturely  considered  the  evidence  adduced,  finds  the 
accused  Captain  G R.  T ,  — th  Regiment  of  Infantry,  as  follows: 

Charge  I. 

Of  the  1st  Specification:  "  Not  guilty." 

Of  the  2d  Specification:  "  Guilty." 

Of  the  3d  Specification:  "Guilty." 

Of  the  4th  Specification:  "  Plea  in  bar  of  trial  sustained  by  the  court." 

Of  the  5th  Specification:  "  Guilty." 

Of  the  Charge:  "Guilty." 

Charge  II. 

Of  the  1st  Specification:  "Guilty." 

Of  the  2d  Specification:  "  Guilty." 

Of  the  3d  Specification:  "  Not  guilty,"  etc. 

Of  the  Charge:  "Guilty." 

SENTENCE. 

And  the  court  does  therefore  sentence  him.  Captain  G R.  T , 

— th  Regiment  of  Infantry,  "  To  be  dismissed  the  service." 

The  record  of  the  proceedings  of  the  general  court-martial  in  the  fore- 
going case  of  Captain  G R.  T ,  — th  Regiment  of  Infantry,  having 


GARRISON  AND  RKGIMENTAL   COURTS.  707 

been  forwarded  for  the  action  of  the  President,  tlie  following  are  his  orders 
thereon  (here  follows  the  executive  order  in  which  the  action  of  the  Presi- 
dent is  embodied). 

2.  By  direction  of  the  Secretary  of  War  (here  follows  such  action  of  the 
War  Department  as  is  necessary  to  carry  the  orders  of  the  President  into 
effect,  closing,  if  such  action  be  desired,  with  a  clause  dissolving  the  court). 

By  command  of  Major-General  M ; 

S B , 


Adjutant- General. 

CASE  OF   AN   ENLISTED   MAN. 

Headquartkks  Department  of  , 


-,  18-. 


Special  Orders,  ) 
No. .         f 


3.  Recruit ,  General  Service,  U.  S.  Army,  having  been  tried 

by  a  general  court-martial  convened  at ,  ,  and  found  guilty 

of  fraudulent  enlistment,  in  violation  of  the  62d  Article  of  War,  was  sen- 
tenced "to  be  dishonorably  discharged  the  service  of  the  United  States, 
forfeiting  all  pay  and  allowances  due  him,  and  to  be  confined  at  hard  labor 
at  such  post  as  the  reviewing  authority  may  direct,  for  the  period  of  one  (1) 
year. ' ' 

The  sentence  is  approved  and  will  be  duly  executed.  The  prisoner  will 
be . 


By  command  of  Brig.  Gen. 


Assistant  Adjutant- General. 


APPENDIX  L. 

FORM  OF  RECOHD:   RET  J  RING  BOARD. 

Proceedings  of  an  Army  Retiring  Board  convened  at  by  virtue 

of  the  following  orders: 

Headquauteks  of  the  Army, 

Adjutakt-General's  Office, 

Washington, , . 

Special,  Orders,  ) 
No. .         j 

The  following  order  has  been  received  from  the  War  Department: 

War  Department,  Washington, ,  189 — . 

By  direction  of  the  President,  and  in  accordance  with    Section  1245, 
Revised  Statutes,  an  Army  Retiring  Board  is  hereby  appointed  to  meet,  at 

the  call  of  the  president  thereof,  at ,  for  the  examination  of  such 

officers  as  may  be  ordered  before  it, 

DETAIL   FOR   THE    BOARD. 

Colonel ,  10th  Infantry; 

Lieutenant-Colonel   ,  3d  Infantry; 

Major ,  Surgeon ; 

Captain ,  Assistant  Surgeon; 

Captain ,  Assistant  Surgeon ; 

First  Lieutenant ,  5th  Cavalry,  recorder. 

Secretary  of  War. 
By  command  of  Major-General . 

A  djutant'  General. 


,  — — ,  1899. 

The  Board  met  pursuant  to  the  foregoing  order  at o'clock. 

present: 

Colonel ,  10th  Infantry; 

Lieutenant-Colonel ,  3d  Infantry; 

Major ,  Surgeon; 

Captain ,  Assistant  Surgeon , 

Captain ,  Assistant  Surgeon ; 

First  Lieutenant ,  5th  Cavalry,  recorder. 

708 


FORM  OF  RECORD:    RETIRING  BOARD.  709 


Captain appeared  before  the   Board   pursuant    to  par. 


> 


Special  Orders  No. ,  Adjutjint-General's  Office,  dated ,  1899, 

and  stated  that  he  did  not  desire   counsel  {or,  introduced  ,  as 

counsel). 

The  order  convening  the  Board  was  then   read,  and  Captain • 

was  asked  if  he  had  any  objection  to  offer  to  any  member  present;  to  which 

he  replied  in  the  negative.     {Or,   that  he  objected  to  ,  on  the 

following  grounds:) 

{hisert  objection.) 

The  challenged  member  stated : 

{Insert  the  statement  of  the  challenged  member,  who  should  be  requested 
to  respo7id  to  the  challenge  and  triform  the  Board  upon  its  merits.  Should 
the  officer  before  the  Board  for  examination  desire  to  put  the  challenged 
member  on  his  voir  dire,  the  record  should  continue  :) 

Captain having  requested  that  the    challenged  member  be 

sworn  on  his  voir  dire, was  then  duly  sworn  by  the  recorder, 

[for  form  of  oath  see  p.  510,  ante,']  and  testified  as  follows: 

The  Board  was  then  closed,  and  on  being  opened  its  decision  was  an- 
nounced that  the  objection  was  not  sustained  {or,  that  the  objection  was 
sustained).  {In  the  latter  case  the  record  should  state  that  the  challenged 
member  then  withdreio.) 

Captain was  then  asked  whether  he  objected  to  any  other 

member;  to  which,  (etc.  as  before). 

{Five  being,  under  Section  1346,  E.  S.,  the  minimum  number  of  members 
of  a  retiring  hoard,  it  must  when  reduced  below  that  number  by  challenge, 
or  if  the  board  is  left  without  the  proportion  of  medical  officers  required  by 
said  section,  adjourji  and  report  the  facts  to  the  conveiiiyig  authority.) 

The  members  of  the  Board  and  the  recorder  were  then  duly  sworn. 

{If  the  officer  desires  to  be  retired,  the  record  will  C07iti7iue  :) 

Captain was  then  asked  whether  he  desired  to  be  retired,  and 

answered  in  the  affirmative.  He  was  then  duly  sworn  as  a  witness,  and 
testified  as  follows: 

Q.  Please  state  the  nature  of  your  disability  and  its  cause,  and  how 
long  you  have  suffered  from  it. 

A.  {The  officer  can  here  make  an  oral  statement,  or  submit  a  written 
one.     If  a  written  statement  is  submitted,  the  record  will  so  state.) 

The  witness  submitted  a  written  statement,  which  was  read  to  the 
Board,  and  is  hereto  attached,  marked  "A." 

Q.  Is  the  statement  submitted  by  you  correct  ? 
A.  Yes. 


710  APPENDIX  L. 

{TJie  Board  may  then  ask  furtlier  questions.) 

Q.  Do  you  desire  to  make  any  further  statement  ? 

A.  '- . 

( Wlien  the  officer  objects  to  retirement,  he  will  not  be  examined  at  this 
stage  of  the  proceedings,  but  may  introduce  evidence  or  make  a  statement  as 
hereafter  ifidicated.) 

Major  ,  Surgeon,  a   member   of  the  Board,  was  then  duly 

sworn,  and  testified  as  follows: 

Q.  Please  submit  to  the  Board  the  result  of  your  examination  of  Cap- 
tain   . 

The  witness  submitted  a  written  report  signed  by  himself  and  Assistant 

Surgeon ,  also  a  member  of  the  Board,  which  was  read  to  the 

Board  and  is  attached,  marked  "B." 

Q.  From  what  cause  does  Captain 's  disability  proceed  ? 

A. . 

Q.  Is  that  disability  permanent  ? 

A. . 

Q.  Is  Captain 's  disability  such  as   to   incapacitate   him   for 

active  service  ? 

A. . 

********* 

{77ie  exaininatio7i  of  the  loitness  should  be  conaucted  so  as  to  bring  out 
all  material  facts  on  the  lines  indicated.) 

Captain stated  that  he  had  no  questions  to  ask  (or,  asked  the 

following  questions). 

********* 

{TTie  other  medical  member  of  the  Board  should  then  be  similarly  interro- 
gated.) 

The  recorder  then  submitted  certain  papers,  referred  to  the  Board  from 
the  Adjutant- General's  Office,  which  were  read  to  the  Board  and  are 
attached,  marked ■. 

Captain had  no  further  evidence  to  submit  nor  statement  to 

make.  (  When  there  is  stich  evidence  or  statement  the  record  will  duly  set  it 
forth.) 

The  Board  was  then  closed  for  deliberation,  and,  having  maturely  con- 
sidered the  case,  finds  that  Captain is  incapacitated  for  active  ser- 
vice, and  that  the  cause  of  said  incapacity  is 

And  the  Board  further  finds  that  said  incapacity  is  (or,  is  not)  an  incident 
of  service. 

The  Board  then  adjourned. 


FORM  OF  RECOIW:    liETIRJNG  BOARD.  Til 

{Or  when  the  Hoard  trishcs  to  hear  the  record  read :) 

Tlie  Board  then  adjourned  to  meet  at o'clock  —  m.,  on ,  1.^09, 


Recorder. 
Second  Day's  Puockeuings. 

"  > 

A.M. 1899. 

The  Board  met  pursuant  to  adjournment. 

Present  :  All  the  members  and  the  recorder. 

The  foregoing  proceedings  were  read  and  approved. 


Fresident  of  the  Board. 
Eecorder. 


APPENDIX  M. 

FORM  OF  EEC  ORB:   BOARD   OF  EXAMINATION. 

(Under  Par.  III.,  G.  O.  128,  A.  G.  O.,  1890,  and  G.  O.  41,  A.  G.  O.,  1897.) 

Proceedings  of  a  Board  of  Officers  convened  at ,  pur« 

suant  to  the  following  order: 

{Here  insert  copy  of  order  appointing  the  Board.^) 

Fort , , 

,  189—,  A.M. 

The  Board  met  pursuant  to  the  foregoing  order.' 

PRESENT. 

{Here  insert  names  of  members  present  and  recorder.) 


The  Board  then  proceeded  to  the  examination  of  Captain ,  who 

appeared  before  the  Board  in  pursuance  of  par. ,  Special  Orders  No.  — , 

Adjutant-General's  Office,  dated ,  1899.     The  order  convening  the 

'  Composition  of  Examining  Boards. — The  examination  of  all  oflScers  of  the  Army 
below  the  rank  of  major  shall  be  conducted  by  boards  selected  in  accordance  with  laws 
approved  October  1,  1890,  and  July  27,  1892,  published  in  G.  O.  No.  116,  1890.  and 
G.  O.  No.  57,  1892,  respectively,  and  composed  as  follows : 

Officer  of  the  Line. — The  board  will  consist  of  five  members  and  a  recorder.  Two 
of  the  members  will  be  medical  officers  and  three  will  be  line  officers  senior  in  rank  to, 
and,  as  far  as  practicable,  from  the  same  arm  of  service  as,  the  officer  to  be  examined. 

Officers  of  the  Corps  of  Engineers,  the  Signal  Corps,  the  Ordnance,  Quartermaster's,  and 
Subsistence  Departments. — The  board  will  consist  of  five  members,  two  of  whom  will  be 
medical  officers,  and  three  of  the  same  corps  or  department,  when  practicable,  as  the 
olBcer  to  be  examined,  and  senior  to  him  in  rank,  the  juiuor  of  whom  will  act  as  recorder. 

Medical  Officers. — The  board  will  consist  of  three  medical  officers,  senior  in  rank  to 
the  officer  to  be  examined,  the  junior  of  whom  will  act  as  recorder  ;  provided,  that 
whenever  a  medical  officer  is  found  to  be  physically  disqualified  the  board  will  report  to 
the  Adjutant-General  and  adjourn,  pending  appointment  of  two  additional  members, 
who  may  be  from  any  line  or  staff  officers  available,  senior  in  rank  to  the  officer  to  be 
examined.  The  board  will  then  proceed  under  the  rules  governing  retiring  boards. 
G.  O.  41,  A.  Q.  O.,  1897. 

The  medical  officers  should  constitute  two  fifths  of  the  board,  so  that  when  it 
proceeds  as  a  retiring  board  its  composition  will  conform  to  that  of  a  retiring  board. 

*  All  public  proceedings  will  be  in  the  presence  of  the  officer  under  examination  ; 
the  conclusions  reached  and  the  recommendations  entered  in  each  case  will  be  regarded 
as  confidential, 

712 


FORM  OF  RECORD:    BOARD    OF  EXAMINATION.  713 

Board  was  then  read  and  Captain was  asked  if  he  had  any  objection 

to  offer  to  any  member  present;  to  which  he  replied  in  the  negative. 

{Or,  that  he  objected  to on  the  following  grounds  ;) 

{Here  insert  objections  to  the  challenged  member.) 

The  challensfed  member  stated: 

{Insert  the  statement  of  the  challenged  member,  who  should  be  requested 
to  respond  to  the  challenge  npon  its  merits.  Should  the  officer  before  the  Board 
for  examination  desire  to  put  the  challenged  mejnber  on  his  voir  dire,  the 
record  should  continue:) 

Captain having  requested  that  the  challenged  member  be  sworn 

on   his   voir  dire,  was    then   duly  sworn   by  the  recorder, 

\_for  form  of  oath  see  p.  510,  ante,'\  and  testified  as  follows: 

Question 

Answer 

The  Board  was  then  closed,  and  on  being  opened  its  decision  was 
announced  that  the  objection  was  not  sustained  {or,  that  the  objection 
was  sustained).  {In  the  latter  case  the  record  should  show  that  the  chal- 
lenged member  then  withdreiv.) 

Captain    was   then   asked    whether    he  objected   to   any  other 

member;  to  which  (etc.,  as  before).' 

The  members  of  the  Board  and  the  recorder  were  then  duly  sworn. 

{Before  proceeding  with  the  physical  examination,  the  officer  about  to  be 
examined  will  be  required  to  siibmit,  for  the  information  of  the  Board,  a 
certificate  as  to  his  ])hgsical  co7iidtion.  In  the  event  of  there  being  no  cause 
or  disqualification  existing,  the  certificate  loill  take  the  following  form  : 

"  /  certify,  to  the  best  of  my  knoioledge  and  belief,  I  am  not  affected  with 
any  form  of  disease  or  disability  lohich  will  interfere  with  the  performance 
of  the  duties  of  the  grade  for  promotion  to  which  I  am  undergoing  examiiia- 
tion.") 

The  record  will  continue: 

Captain then  submitted  a  certificate  as  to  his  physical  qualifica- 
tions for  promotion,  which  is  hereto  appended,  marked  "  A." 

'  The  orgauization  of  boards  will  conform  to  that  of  retiring  boards,  the  recorder 
swearing  the  several  members,  including  the  medical  officers,  faithfully  and  impartially 
to  examine  and  report  upon  the  officer  about  to  be  examined,  and  the  president  of  the 
board  then  swearing  the  recorder  to  the  faithful  performance  of  his  duty.  Proceedings 
will  be  made  separately  in  each  case.     G.  O.  41,  A.  G.  O.,  1897. 

Previously  to  the  swearing  of  the  board,  members  thereof  may  be  challenged,  for 
cause  stated  to  the  board,  the  relevancy  and  validity  of  which  shall  be  determined  by 
the  full  board,  according  to  the  procedure  of  courts-martial  in  like  cases.  The  record 
will  show  that  the  right  to  challenge  was  accorded.  If  the  number  of  members  la 
reduced  by  challenge  or  otherwise,  the  board  will  adjourn,  and  report  the  facts  to  the 
Adjutant-General,  through  the  president  of  the  board,  for  the  action  of  the  War  Depart- 
ment. Medical  officers  will  not  take  part  in  the  professional  examination  except  in  the 
cases  of  assistant  surgeons.  They  will  make  the  necessary  physical  examination  of  all 
officers  and  report  their  opinion  in  wilting  to  the  board.  All  questions  relating  to  the 
physical  condition  of  an  oliiter  shall  be  determined  by  the  full  board.  G.  O.  41,  A.  G.  0., 
1897. 


714  APPENDIX  M. 

The  medical  officers  of  the  Board  then  retired  with  Captain  ■ for 

the  purpose  of  making  the  physical  examination  required  by  law;  and  the 
Board  having  reassembled,  and  all  the  members  being  present,  reported  that 

they   found    Captain   physically    qualified    for    promotion.'      The 

written  report  was  then  read  to  the  Board  and  is  hereto  appended,  marked 
"B." 

{If  the  members  of  the  Board,  or  the  officer  undergoing  eccamination, 
desire  to  question  the  medical  officers  in  respect  to  the  physical  examina- 
tion, their  questions  and  answers  toill  he  recorded  i?i  the  form  prescribed 
for  a  retiring  board^  [pf^ffc  710,  a7ite];  if  there  be  no  questions,  the  record 
will  continue :) 

The  Board  then  found  Captain physically  capacitated  for  service 

and  fit  for  promotion  {or  physically  incapacitated  for  service  and  unfit  for 
promotion).' 


President, 


Recorder. 

{Wlien  the  officer  has  been  found  physically  capacitated  for  promotion, 
the  Board,  except  the  medical  members,  will  proceed  to  the  professional 
examination  of  the  officer.) 

[During  oral  and  practical  examinations  all  the  members,  excepting  the 
medical  officers,  will  be  present. 

Written  examinations  may  be  conducted  in  the  presence  of  one  member 
of  the  board,  or  the  recorder,  for  which  purpose  the  board  may  be  divided 
into  committees,  before  whom  the  examination  shall  be  conducted  from  day 
to  day  until  completed  ;  after  which  the  board  will  reassemble  to  consider 
its  finding. 

'  The  report  will  show  the  physical  condition  of  the  oflBcer  undergoing  examination 
as  to  capacity  or  incapacity  for  service,  and,  in  case  of  incapacity,  its  cause,  and  what- 
ever further  information  may  be  necessary  to  an  understanding  of  the  case, 

'  If  anything  should  arise  during  the  examination  requiring  the  introduction  of  evi- 
dence, the  inquiry  shall  proceed  upon  written  interrogatories  as  far  as  possible,  tLe  board 
determining  to  whom  questions  shall  be  forwarded.  When,  in  the  opinion  of  the  board, 
it  becomes  essential  to  take  oral  testimony,  the  facts  should  be  reported  to  the  War 
Department  for  the  necessary  orders  in  regard  to  witnesses  to  be  summoned  from  a 
distance.  Witnesses  examined  orally  will  be  sworn  by  the  recorder.  G.  O.  41,  A.  G.  O., 
1897. 

*  The  record  in  each  case  where  an  officer  is  found  physically  disqualified  shall  be 
authenticated  by  all  the  members,  including  medical  officers,  and  the  recorder.  In  all 
other  cases  the  medical  officers  will  not  be  required  to  sign  the  proceedings.  If  any 
member  dissents  from  the  opinion  of  the  board,  it  will  be  so  stated. — G.  O.  41,  A.  G.O., 
1897. 


FOliM  OF  nKCORD:  BOARn   OF  EXA}fL\ATION.  Tl5 

Papers  should  be  given  out  so  that  everything  in  the  liamls  of  the  ofticer 
beinn-  examined  may  be  ansucrcd  before  a  recess  or  adjournment.  A  state- 
ment showing  that  such  was  the  procedure  during  tlie  written  examinations 
•will  be  embodied  in  the  record.  The  number  and  value  will  be  entered  on 
the  margin  of  questions  used  for  the  written  examination.  Original  ques- 
tions prepared  by  the  board  will,  for  convenience  of  the  reviewing  authority, 
indicate  where  answers  may  be  found. 

To  secure  some  degree  of  uniformity  of  examination  of  line  officers, 
boards  will  be  furnished  by  the  Adjutant-General  with  lists  of  questions, 
with  values  attached.  Hoards  will  not,  however,  be  confined  to  the  ques- 
tions  contained  in  these  lists,  and  are  authorized  to  ask  any  questions, 
selected  from  the  publications  recommended  herein  for  study,  deemed  neces- 
sary during  the  progress  of  the  oral,  written,  or  practical  examinations. 
Where  blackboard  or  other  illustrations  will  facilitate  the  oral  and  practical 
examinations,  their  use  is  authorized.  Examinations  will  be  conducted  in 
a  sufHciently  exhaustive  manner  to  determine  not  only  that  the  subject  is 
thoroughly  compreliended,  but  the  degree  of  proficiency  of  the  ofticer  being 
examined,  and  until  the  board  is  positively  satisfied  as  to  his  ability  to  im- 
part instruction  in  the  various  subjects.  In  case  of  unpropitious  weather, 
practical  exercises  may  be  postponed  from  day  to  day,  but  never  omitted  or 
materially  curtailed. 

AVhenever  the  oral  examination  of  any  line  officer  is  unsatisfactory  in 
any  subject  the  board  will  at  once  proceed  with  a  written  examination  in 
that  subject,  and  in  case  the  officer  is  not  found  proficient,  the  questions 
and  answers  will  be  attached  to  the  proceedings.' 

At  the  conclusion  of  his  examination,  each  officer  will  sign  and  submit 
a  certificate  in  his  own  handwriting  to  the  effect  that  he  has  not  received 
assistance  from  any  unauthorized  source,  or  communicated  or  transcribed 
any  of  the  questions  or  problems  submitted  for  his  use  during  the  examina- 
tion. 

In  Avritten  examinations  a  numerical  value  will  be  given  to  each  ques- 
tion. In  the  oral  and  practical  examinations  a  numerical  value  will  be 
given  to  each  subject.  Where  botli  oral  and  jiractical  examinations  are 
required  in  the  same  subject  the  board  will  allot  the  value  to  be  credited  to 
each  part. 

In  the  lists  prepared  for  the  use  of  boards,  values  of  5,  10,  and  15  have 
been  assigned  to  the  questions.  Corresjionding  values  will  be  given  by  the 
board  to  any  original  questions.     It  is  assumed  that  an  average  of  twenty 


'  Comniandins  officers  of  posts  at  or  in  the  vicinity  of  which  boards  iimj'  lie  appointed 
to  meet  will,  without  further  instructions,  furnish,  upon  request  of  the  l)oard,  such 
available  troops  and  material  as  may  be  required  by  boards  in  the  execution  of  this 
order  When  it  is  not  practicable  to  obtain  the  requisite  troops  and  material  for  the 
complete  practical  examination  as  prescribetl  for  artillery,  oral  and  written  examinations 
will  be  substituted  by  the  board  for  the  portion  omiited.     G.  O.  41,  A.  G.  O.  1897. 


16 


APPENDIX  M. 


questions  will  be  asked  in  each  subject,  but  tlie  board  is  not  limited  to  that 
number.  The  total  values  and  relative  weights  of  all  subjects  for  which 
questions  are  furnished  by  the  Adjutant-General  shall  be  as  follows: 


Subject. 


I.   Admiuistratiou 

II    Drill  regul.'itions 

III.  Exterior  ballistics,  etc.  .., 

IV.  Fire  discipliue 

V.   Hippology 

VI.  Military  field-engineering 

VII.   Militiuy  law 

VIII    ^Military  topography 

IX.   Minor  tactics 


Total  value. 

Relative 
weight. 

200 

1 

200 

3 

200 

2 

200 

0 

200 

2 

200 

2 

200 

1 

200 

2 

200 

3 

In  computing  the  examination,  find  the  percentage  in  the  various  sub- 
jjects,  multiply  each  by  the  relative  weight  of  that  subject,  then  divide  the 
sum  of  these  products  by  the  sum  of  the  relative  weights  of  the  subjects  in- 
cluded in  the  examination  of  each  officer. 

The  numerous  questions  embraced  in  each  list,  together  with  such  origi- 
nal questions  as  may  be  formulated  by  the  board,  admit  of  considerable 
variation,  and  make  it  possible  to  arrange  examinations  radically  different 
as  regards  particular  questions,  but  essentially  the  same  in  respect  to  scope 
and  character.  It  is  desirable  that  the  questions  be  selected  indiscriminately 
in  each  case,  to  the  end  that  each  officer  undergoing  examination  may  have 
a  different  arrangement  of  questions,  even  when  simultaneous  examinations 
of  a  similar  character  are  being  conducted. 

For  the  present,  questions  furnished  for  the  use  of  examining  boards  by 
the  Adjutant-General  will  be  prepared  from  Army  Regulations,  General 
Orders,  Circulars,  Drill  Regulations,  and  the  following  publications: 

Abridgment  of  Military  Law. —  Winthro]). 

Ballistics,  Exterior,  Handbook  of  Problems  in. — Ingalls. 

Ballistic  Machines. — Ingalls. 

Defense  of  the  Seacoast  of  the  United  States. — Ahhot. 

Explosives,  Lectures  on. —  Walhe. 

Gunmaking. — Birnie. 

Gunnery. — Mackinlay. 

Horses,  Saddles,  and  Bridles. — Carter. 

Infantry  Fire:  Its  use  in  battle. — Batchelor, 

Manual  of  Field-engineering. — Beach. 

Manual  of  Heavy  Artillery.—  Tidball. 

Military  Topography  and  Sketching. — Root. 

Organization  and  Tactics. —  Wagner. 

The  Service  of  Security  and  Information. —  Wagner. 


FORM   OF  RECORD:    BOARD    OF  EXAMINATION.  71 7 

Under  tliese  conditions  they  are  recommended  for  special  study  liy 
ofiRcers  jtrepariiif^  for  examination  for  promotion. 

No  otticer  will  be  passed  who  fails  to  obtain  75  per  cent  in  each  of  ti  <• 
Written,  oral,  and  practical  examinations. 

Graduating  di]>lomas  of  the  Infantry  and  Cavalry  School,  and  the 
Artillery  School,  dated  not  more  than  five  years  anterior  to  examination, 
shall  be  accepted  as  evidence  of  proficiency,  except  for  physical  examina- 
tion.']    (G.  0.  41,  A.  G.  0.  1897.) 

When  the  examination  as  to  professional  capacity  lias  been  completed, 
the  record  will  continue,  in  the  case  of  an  officer  found  to  be  qualified  for 
promotion: 

CAPTAIN. 

The  Board  is  of  opinion  that ,  —  Regiment  of ,  United 

States  Army,  has  tlie  physical,  moral,  and  professional  qualifications  to  per- 
form efficiently  all  the  duties  of  the  grade  to  which  he  will  next  be  eligible, 
and  recommends  his  promotion  thereto. 

{In  cases  where  the  officer  is  found  to  he  qualified  for  promotion,  the 
pi'oceedings  ivill  he  authenticated  hy  the  signatures  of  all  the  memhers, 
except  the  medical  meiyihers,  and  the  recorder.  If  any  memher  dissents  from 
the  opinion  of  the  Board,  it  will  he  so  stated.) 

The  Board  then  adjourned  sine  die  {or,  until a.  m. ,  1899; 

or,  to  meet  at  the  call  of  the  president). 


President. 


Ji'i'corder. 


'  For  scope  of  examination  in  the  cases  of  oflacers  of  the  line  and  of  the  several  staff 
departments,  see  G.  O.  41,  A.  G.  O.  1897. 


APPENDIX  N. 
FORMS  OF  RETURN  TO    WRIT  OF  HABEAS   CORPUS, 

1.   WHERE   WRIT   ISSUES   FROM  A  STATE  COURT. 

Form  1. 

person  held  under  warrant  of  attachment. 

In  re .     {Name  of  j)arty  held. ) — Writ  of  habeas  corpus — return 

of  respondent. 
To  the 


The  respondent,  Major ,  — th  U.  S.  Infantry,  upon  whom  has 

been  served  a  writ  of  habeas  corpus  for  the  production  of ,  respect- 
fully makes  return  and  states  that  he  holds  the  said by  authority 

of  the  United  States,  pursuant  to  a  warrant  of  attachment  issued  under  sec- 
tion 1202  of  the  Revised  Statutes  of  the  United  States  by  a  judge-advocate 
of  a  lawfully  convened  general  court-martial  and  duly  directed  to  him,  the 
said  respondent,  for  execution;  that  he  is  diligently  and  in  good  faith 
engaged  in  executing  said  warrant  of  attachment,  and  that  he  respectfully 
submits  the  same  for  the  inspection  of  the  court,  together  with  the  original 
subpoena  and  proof  of  service  of  the  same,  and  a  certified  copy  of  the  order 
convening  said  general  court-martial. 

And  said  respondent  furtiier  respectfully  makes  return  that  he  has  not 

produced  the  body  of  the  said ,  because  he  holds  him  by  authority 

of  the  United  States,  as  above  set  forth,  and  that '  is  without 

jurisdiction  in  the  premises,  and  he  respectfully  refers  to  the  decisions  of 
the  Supreme  Court  of  the  United  States  in  Ableman  v.  Booth,  21  Howard 
506,  and  Tarble's  Case,  13  Wallace,  397,  as  authority  for  his  action,  and 
prays '  to  dismiss  the  writ. 

Major,  — th  U.  S.  Infantry. 

Dated ,  , 

,  18—. 


'  "  Court  "  or  "  jurlge,"  as  the  case  may  be. 

'  '•  This  court"  or  "your  honor,"  as  the  case  may  be. 

718 


FOIiilS  OF  RETURy  TO    WRIT  OF  HABEAS  CORPUS.  IVd 

FOKM    'I. 
PERSON'    IIKLI)    AS    A    DKSKKTKll. 

The  respondent, redpectfully  makes  return  and  states  that  he 

holds  the  said by  authority  of  the   United  States,  as  a  deserter 

from  the  U.  S.  Army,  under  circumstances  as  follows: 

'J'hat  the  said was  duly  enlisted  as  a  soldier  in  the  service  of 

the  United  States  at — ,  ,  on ,  189~,  for  a  term  of 

years. 


That  the  said deserted  said  service  at ,  on 

,  180 — ,  and  remained  absent  in  desertion  nntil  he  was  apprehended  at 

^  ^  on — ,   189 — ,  by ,  and  was  thereupon 

committed  to  the  custody  of  the  respondent  as  commanding  otiicer  of  the 

post  of ,  . 

That  charges  for  said  desertion,  a  copy  of  which  is  annexed,  have  been 

preferred  against  the  said ,  and  that  he  will  be  brought  to  trial 

thereon  as  soon  as  practicable  before  a  court-martial  to  be  convened  by  the 

commanding  general  of  the  Department  of  . 

(07)  convened  by  Special  Orders  No.  — ,  dated  Headquarters  Department 
of ,  189 — ,  a  copy  of  which  order  is  hereto  annexed. 

And  the  said  respondent  further  makes  return,  etc. 

{Conclude  with  laM  paragraph  of  form  1.) 


2.   WHERE   WRIT  ISSUES  FROM   A   UNITED  STATES  COURT. 

RETURN    TO    WRIT. 

{Make  return  as  in  case  of  writ  hy  a  State  court,  except  as  to  last  para- 
graph, for  which  substitute  as  folloivs:) 

In  obedience,  however,  to  the  said  writ  of  habeas  corpus  the  respondent 

herewith  produces  before  the  court  the  body  of  the  said ,  but  for 

the  reasons  set  fortli  prays  this  honorable  court  to  dismiss  the  said  writ. 


Major,  — th  U.  S.  Infantry, 

Dated ,  , 

,  189—. 


APPENDIX  0. 

MISCELLANEOUS    FORMS. 

SUBPOENAS,    SUMMONS,    ETC. 
SUMMONS   FOR  A  MILITARY   WITNESS. 

Fort 


-18. 


To 


—  Infantry. 

Sir:  You  are  hereby  summoned  to  appear  on  the  —  of ,  189 — , 

at o'clock  — .M.,  before  a  general  court-martial,  convened  at 

-,  by  Special  Orders,  No. ,  from ,  as  a  witness  in  the  case  of 


Private  A B ,  Company  — ,  — th  Infantry. 

C D- 


Judge- Advocate. 


SUBP(ENA  FOR  CIVILIAN  WITNESS. 

Ukited  States  ) 

na.  >•  Subpoena. 

The  President  of  the  United  States,  to ,  greeting  : 

You  are  hereby  summoned  and  required  to  be  and  appear  in  person  on 

the th  day  of  ,  189 — ,  at o'clock — .m.,  before  a  general 

court-martial  of  the  United  States,  convened  at ,  by  Special 

Orders,  No. ,  Headquarters ,  dated ,  189 — ,  then 

and  there  to  testify  and  give  evidence  as  a  witness  for  the in  the 

above-named  case.     And  have  you  then  and  there  this  precept. 
Dated  at , ,  this  — th  day  of ,  189—. 


Judge- Advocate  of  the  Court- Martini. 

720 


MlSCELLANEOl'^  FORMS.  721 


SUBPCENA   DUCES  TECUM. 

{Civilian  witiiess.) 

United  States  \ 

m.  I  Subpoena. 


The  President  of  the  United  States,  to ,  greeting : 

You  are  hereby  summoned  and  required  to  be  and  appear  in  person  on 

the  — th  day  of ,   189 — ,  at o'clock  — .m.,  before  a  general 

court-martial  of  the  United  States,  convened  at by  .Special  Orders, 

No.  ,  Headquarters ,  dated ,  1H9 — ,  then  and  there 

to  testify  and  give  evidence  as  a  witness  for  the in  the  above-named 

case;  and  you  are  hereby  required  to  bring  with  you,  to  be  used  in  evidence 

in  said  case,   the  following  described  documents,  to  wit:  . 

And  have  you  then  and  there  this  precept. 

Dated  at ,  ,  this  — th  day  of ,  189 — . 


Judge-Advocate  of  the  Court-Martial. 


RETURN    OF   SERVICE. 

{Indorsement  of  preceding  writs.y 

United  States 
vs. 


I  certify  that  I  made  the  service  of  the  within  subpcena  on 


—   18. 


the  witness  named  therein,  by  personally  delivering  to  him  in  person  a 
duplicate  of  the  same  at ,  on  the  — th  day  of ,  189 — . 


ih- 


-,  being  duly  sworn,  on  his  oath  states  that  the  foregoing 


certificate  is  true. 


Subscribed  and  sworn  to  this  — th  day  of ,  189 — ,  before  me.' 


'  On  the  back  of  each  form  of  writ  are  forms  for  both  certificate  and  affidavit.  It  is 
not  necessary  to  make  the  affidavit  unless  the  witness  be  in  default  and  it  is  proposed  to 
issue  process  to  compel  attendance.  In  such  case  the  atlidavit  can  be  tilled  out  from  the 
certificate  made  at  the  time  of  service.     Manual  for  Courtsinartial.  139.  nole  1. 

'  After  service,  as  above  indicated,  the  original  subpivna  should  be  at  once  returned 
to  the  judge-advocate  of  the  court  ;  if  the  witne.ss  cannot  be  found,  the  jiidire-advocate 
should  be  so  informed.  If  a  civilian  witness  he  summoned  from  a  distance,  pars.  6  and  7, 
page  714.  infra,  will  be  copied  on  back  of  subpa-na  to  enable  witness  to  keep  a  proper 
memorandum  of  expenses. 


722  APPENDIX  0. 

WARRANT  OF  ATTACHMENT. 
United  States^ 

Tlie  President  of  the  United  States,  to ,'  greeting: 

Whereas  ,  of  — ,  ,  was  on  the  — th  day  of 

^  189 — ,  at ,  duly  subpoenaed  to  appear  and  attend  at  , 

-,  on  the  — th  day  of ,  at o'clock  — .m.,  before  a  general 


court-martial  duly  convened  by   Special  Orders,  No.    ,  dated  Head- 
quarters Department  of , ,  189—,  to  testify  on  the  part  of 

the in  the  above-entitled  case ;  and  whereas  he  has  failed  to  appear 

and  attend  before  said  general  court-martial  to  testify  as  by  said  subpoena 
required,  and  whereas  he  is  a  necessary  and  material  witness  in  behalf  of  the 

in  the  above-entitled  case; 

Xoiv,  therefore,  by  virtue  of  the  power  vested  in  me,  the  undersigned,  as 
judge-advocate  of  said  general  court-martial,  by  section  1202  of  the  Revised 
Statutes  of  the  United  States,  you  are  hereby  commanded  and  empowered 

to  apprehend  and  attach  the  said ,  wherever  he  may  be  found 

within  the of ,'  and  forthwith  bring  him  before  the  said  general 

court-martial  assembled  at , ,  to  testify  as  required  by  said 

subpoena.' 


Judge- Advocate  of  said 
General  Court-martial. 

Dated ,  — — — , 

,  189—. 


'  Here  insert  the  name  and  designation  of  the  officer  or  'non-commissioned  officer 
designated  by  proper  authority  to  serve  the  writ. 

»  State,  Territory,  or  District  where  the  court  sits. 

»  See  the  article  "  WilnesseB,"  pp.  245-250,  in  the  chapter  entitled  Evidencb.  Sec, 
also,  p.  460,  anU. 


J^I^CELLANEOUS  FORMS. 


i'J-.i 


ACCOUNT   OF  CIVILIAN    WI  I  NESS. 
7%c  United  /States  to , 


JJr. 


189—. 


in 

>> 

a> 

a 

c 

^ 

if 

z 

V 

c 

rt 

H 

S 

0 

a» 

> 

A 

a 

o 

V 

g 

> 

(^ 

O 

CR 

t^ 

05 

o 

O 

■.-< 

^ 

is 

OJ 

_5 

z 

a3 

> 

n 

u 

<u 

u 

> 

O 

o 

fc 

O 

Expenses  as  witness  before  a  military  court  convened  under    '  ^^  ,,    |    ^ 

uuuexed  Older.  ^^^^^-     ^^■ 


From 

For  iiiileasre  from 


-,  189—.  to 


-,  1«9— . 


to 
miles,  111  0  cents  jit-r  mile. 


and  return,  being 


Foraliowiiuce  while  tiuvclliuj,'  to  and  from  .said  court,  between 
the  above  dates  inclusive,  days,  at  |1..")U  per  day 


For  allowance  while  iuiittendanceonsaid  court,  from- 

189—,  to ,  189 — ,  as  per  judge-udvocale's  certiticate 

hereon, davs,  at  |1.50  per  day 


Total. 


From 


189—.  to 


189- 


to 


and  re- 


For  actual  cost  of  travel  from 

turn,  as  per  memorandum  annexed 

For  actual  cost  of  meals  and  rooms  while  travelling  to  and 

from  said  court,  between  above  dates  inclusive. days 

For  actual  cost  of  meals  and  rooms  while  in  attendance  on 

said  court,   from ,  189 — ,  to .   189 — ,  as 


per  judge-advocate's  certificate  hereon, 


days. 


Total. 


T  solemnly  swear  that  the  above  acconnt  is  correct;  that  I  have  not  been 
furnished  with  Government  transportation  for  any  part  of  the  jonrney  for 
which  travel  fare  is  charged,  and  that  the  jonrney  was  performed  without 
unnecessary  or  avoidable  delay. 

.   \yit?iesx. 

Sworn  to  and  subscribed  before  me  at  on  this  — th  day  of 

,  189—. 


Judge- Advocate. 
Received  this  — th  day  of  ,  189 — ,  of  Major  ,  pay- 
master, U.  8.  Army, dollars,  in  full  of  the  above  account,  by  check 

No. ,  on . 


-,  Witness. 


[In  duplicate.] 

judge-advocate's  certificate. 
{On  back  of  form.) 

I  certify  that ^.  a  civilian,  has  been  in  attendance  aa  %  material 

witness  from ,   189 — ,   to ,    189 — ,   inclneive,   before  a 


Y24  APPENDIX   0. 

general  court-martial  duly  convened  at  this  place,  and  that  he  was  duly  sum- 
moned thereto  from , . 


Jii  dge-A  dvocate. 

Place,  , 

Date, ,  189—. 

(]S'otp:. — Jf  the  witness  be  '■'■in  Government  employ,''''  these  tvords  will  be 
iJisertcd  in  the  above  certificate  after  the  ivord  ^'civilian.'") 

RULES    GOVERXIXG    ACCOUXTS    OF    CIVILIAN    AVITNESSES. 

The  Paymaster-General  is,  under  paragraphs  962-966,  Army  Regula- 
tions, governed  by  the  following  rules  in  the  treatment  of  vouchers  for 
travel  expenses  of  civilian  witnesses  before  military  courts: 

1.  The  voucher  must  be  accompanied  by  a  copy  of  the  order  convening 
the  court,  with  the  original  summons  in  the  case,  or,  if  the  attendance  was 
authorized  by  military  order,  by  the  original  order.  In  the  absence  of  the 
original  order  or  summons,  certified  copies  of  the  same  will  be  accepted. 

2.  The  affidavit  of  the  witness  (on  face  of  voucher)  and  the  judge-advo- 
cate's certificate  (on  back  of  voucher)  are  required  in  all  cases.  The 
voucher  and  all  accompanying  papers  must  be  in  duplicate. 

3.  The  items  of  expenditure  authorized  in  paragraphs  962  and  963, 
Army  Regulations  of  1895,  will  be  set  forth  in  detail  in  a  memorandum 
which  will  be  attached  to  each  voucher.  No  other  items  will  be  allowed. 
The  correctness  of  the  items  will  be  attested  by  the  affidavit  of  the  witness, 
to  be  made,  when  practicable,  before  the  judge-advocate. 

4.  The  certificate  of  the  judge-advocate  will  be  evidence  of  the  fact  and 
period  of  attendance,  and  will  be  made  on  the  voucher. 

5.  Upon  execution  of  the  affidavit  and  certificate  the  witness  will  be  paid 
npon  his  discharge  from  attendance,  without  waiting  for  completion  of 
return  travel.  The  charges  for  return  journeys  will  be  made  upon  the  basis 
of  the  actual  charges  allowed  for  travel  to  the  court. 

6.  A  civilian  witness  not  in  Government  employ  will  receive  5  cents  a 
mile  for  going  from  his  place  of  residence  to  the  place  of  trial  or  hearing  and 
5  cents  a  mile  for  returning,  distances  to  be  calculated  by  the  shortest 
usually  travelled  route.  He  will  also  receive  $1 .50  for  each  day  actually  and 
unavoidably  consumed  in  attendance  upon  the  court  under  the  summons. 
No  other  items  will  be  allowed. 

7.  Civilian  witnesses  iyi  Government  employ  will  be  reimbursed  as  follows: 
{a\  Amount  actually  paid  for  cost  of  transportation  or  travel  fare. 

{b)  Amount  actually  paid  for  cost  of  transfers  to  and  from  railway 
stations,  not  exceeding  50  cents  for  each  transfer. 


MISCELLANEOUS  FORMS.  72 


c 


(c)  Amount  actually  })aid  for  cost  of  one  double  berth  iu  sleeping-cars  or 
on  steamers,  where  an  extra  charge  is  made  therefor. 

{cl)  The  actual  cost  of  meals  and  rooms  at  a  rate  not  exceeding  %'i  per 
day  for  each  day  actually  and  unavoidably  consumed  iu  travel  or  in  attend- 
ance upon  the  court. 

8.  Travel  must  be  estimated  by  the  shortest  available  usually  travelled 
route;  the  charge  for  cost  of  travel  (items  a,  b,  c)  by  established  lines  of 
railroad,  stage,  or  steamer  should  not  exceed  the  usual  rates  in  like  cases, 
the  time  occupied  to  be  determined  by  the  official  schedules,  reasonable 
allowance  being  made  for  customary  unavoidable  detention. 

9.  Tlie  summons,  or  order  for  attendance,  will  be  presumed  to  show  in 
all  cases,  by  indorsement  or  otherwise,  if  transportation  in  kind  or  commu- 
tation of  rations  has  been  furnished.  Transportation  in  kind  will,  for  any 
distance  covered  thereby,  be  a  bar  to  payment  of  item  a.  Indorsements  of 
transportation  furnished  will  be  scrutinized  to  ascertain  if  any  part  of  item 
c  has  been  included. 

Commutation  of  rations  will  be  a  bar  to  payment  of  item  d.  Transpor- 
tation and  commutation  of  rations  will  be  a  bar  to  any  payment. 

10.  No  per  diem  allowance  can  be  made  where  the  attendance  upon  the 
court  does  not  require  the  witness  to  leave  his  station.  (This  applies  to 
civilians  in  Governmejit  employ.) 

11.  Compensation  to  civilians  in  or  out  of  Government  employ,  for 
attendance  upon  civil  courts,  is  payable  only  by  the  civil  authorities. 

12.  If  a  witness  is  in  Government  employ  the  judge-advocate  will  state 
the  fact.  If  it  does  not  appear  in  the  certificate  or  elsewhere  in  the  papers, 
and  is  not  known  to  the  paymaster,  it  will  be  assumed  that  the  witness  is 
not  in  Governynent  employ. 

13.  Whenever  needed,  judge-advocates  can  procure  blank  accounts  for 
civilian  witnesses  from  any  army  paymaster  or  from  the  Paymaster-General's 
Office.  The  accounts  may  then  be  made  out  upon  a  witness'  discharge 
from  attendance.  If  no  paymaster  be  present  at  the  place  where  the  court 
sits,  the  accounts,  authenticated  as  above  directed,  may  be  transmitted  to 
any  paymaster  for  payment,  with  confidence  that  the  witness  will  receive  his 
pay  without  unnecessary  delay. 

INTERROGATORIES  AND   DEPOSITIONS. 
Interrogatories. 


The  United  States  |  To {Xayne  of  officer  tvJio  is  to  cause  the 

^[ C  depositioyi  to  be  taken.) 

Interrogatories  and  cross-interrogatories  to  be  propounded  under  the  9l8t 
Article  of  War  to ,  a  witness  for  the {prosecution   or 


726  APPENDIX   0. 

defense)  in  the  above-entitled  case,  now  pending  and  to  be  tried  before  the 

general  court-martial,  convened  at , ,  by  paragraph , 

Special    Orders,    No.  ,    Headquarters    Department  of  ,    dated 

— th,  189—. 

l3t  interrogatory: ? 

2d  interrogatory: ? 

Etc. 

Ist  cross-interrogatory : ? 

2d  cross-interrogatory : ? 

Etc. 


Deposition. 

.,  the  witness  above  named,  being  first  duly  sworn,  doth  depose 


and  say  for  full  answers  to  the  foregoing  interrogatories,  as  follows: 

To  the  1st  interrogatory : ? 

To  the  2d  interrogatory : ? 

Etc. 


{Signature  of  witness.) 
Subscribed  and  sworn  to  before  me,  this  — th  day  of ,  189^. 


—  189—. 


X^ ,  the  officer  designated  to  cause  the  deposition  of  the  said 

to  be  taken  on  the  foregoing  interrogatories  and  cross-interroga- 


tories, do  certify  that  it  was  duly  made  and  taken  under  oath. 


'  To  be  signed  by  the  parties  or  party  propounding  the  interrogatories  and  cross- 
interro"-atories.  If  the  witness  is  for  the  prosecution  and  there  are  uo  cross-interrogatories, 
tlie  iud°o-e-advocate  will  certify  that  the  defense  had  an  opportunity  tc  propound  them. 
(See  91st  Article  of  War.)  W'ith  the  consent  of  the  opposite  i)arty  the  depositions  of  a 
witness  residing  within  the  Slate.  Territory,  or  District  in  which  the  court  sits  may  be 
taken  and  read  in  evidence.  A  simple  consent  entered  on  this  form  will  be  sufficient. 
Manual  for  Courts-martial,  141,  note  1.  ,     .   .        .         ,  .,         ,         •,,      n  i  • 

'  The  iurat  to  be  signed  bv  the  offacer  admmistermg  the  oath,  who  will  add  his 
official  (iesiirnation.  If  the  oaih  is  aduiinistered  by  a  notary  public,  his  seal  will  be 
affixed  to  the  deposition.     /6jt/.,  note  3. 


APPENDIX  P. 

MAXIMUM  LIMITS   OF  PUNISHMENT. 

The  Act  of  September  27,  1890,*  provides  that  "whenever  by  any  of  the 
Articles  of  War  for  the  government  of  the  Army  the  punishment  on  convic- 
tion of  any  military  offense  is  left  to  the  discretion  of  the  court-martial,  the 
punishment  therefor  shall  not,  in  time  of  peace,  be  in  excess  of  a  limit 
which  the  President  may  prescribe."  The  last  order  of  the  President  pre- 
scribing limits  of  punishment  is  as  follows  :* 

Executive  Mansion,  June  12,  1905. 

The  Executive  order,  dated  March  20,  1895,  establishing  limits  of  pun- 
ishment for  enlisted  men  of  the  Army,  under  an  Act  of  Congress  approved 
September  27,  1890,  and  which  was  published  in  General  Orders,  Xo.  42, 
1901,  War  Department,  is  amended  so  as  to  prescribe  as  follows,  to  take 
effect  thirty  days  after  the  date  of  this  order: 

Article  I. 


In  all  cases  of  desertion  the  sentence  mav  include  dishonorable  discharsre 
and  forfeiture  of  pay  and  allowances. 

Subject  to  the  modifications  authorized  in  Section  3  of  this  article  the 
limit  of  the  term  of  confinement  (at  hard  labor)  for  desertion  shall  be  as 
follows : 

Section  1.  In  case  of  surrender — ■ 

(a)  When  the  deserter  surrenders  himself  after  an  absence  of  not  more 
than  thirty  days,  one  year. 

(b)  When  the  surrender  is  made  after  an  absence  of  more  than  thirty 
days,  eighteen  montlis. 

Sec.  2.   In  case  of  apprehension — 

(a)  When  at  the  time  of  desertion  the  deserter  shall  not  have  been  more 
than  six  months  in  the  service,  eighteen  months. 

(6)  When  he  shall  have  been  more  than  six  months  in  the  service,  two 
and  one-half  years. 


•  26  Stat,  at  Large,  491. 

»  General  Orders  No.  42,  War  Department,  1905. 


728 


APPENDIX  P. 


Sec.  3.  The  foregoing  limitations  are  subject  to  modification  under  the 
following  conditions  : 

(a)  The  punishment  of  a  deserter  may  be  increased  by  one  year  of  con- 
finement at  hard  labor  in  consideration  of  each  previous  conviction  of 
desertion. 

(b)  The  punishment  for  desertion  when  joined  in  by  two  or  more  soldiers 
in  the  execution  of  a  conspiracy,  or  for  desertion  in  the  presence  of  an  out- 
break of  Indians  or  of  any  unlawful  assemblage  which  the  troops  may  be 
opposing,  shall  not  exceed  dishonorable  discharge,  forfeiture  of  all  pay  and 
allowances,  and  confinement  at  hard  labor  for  five  years. 

Article  II. 

Except  as  herein  otherwise  indicated  punishments  shall  not  exceed  the 
limits  prescribed  in  the  following  table: 


Offenses. 


Under  17th  Article  of  War. 


Selling  horse  or  arms,  or  both. 


Selling  accoutrements. 


Selling  clothing. 


Losing  or  spoiling  horse  or  arms  through 
neglect. 


Losing    or    spoiling    accoutrements   or 
clothing  through  neglect. 

Under  20th  Article  of  War. 

Behaving  himself  with  disrespect  to  his 
commanding  officer. 


Under  24th  Article  of  War. 

Refusal  to  obey  or  using  violence  to 
officer  or  non-comuiissioned  officer 
while  quelling  quarrels  or  disorders. 


Limits  of  Punishment. 


Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  confinement  at  hard  labor 
for  three  years. 

Four  months'  confinement  at  hard  labor  and  for- 
feiture of  $10  per  month  for  the  same  period; 
for  non-commissioned  officer,  reduction  in  ad- 
dition thereto.' 

Threemonths'confinement  at  hard  labor  and  for- 
feiture of  $10  per  month  for  the  same  period; 
for  non-commissioned  officer,  reduction  in  ad- 
dition thereto. 

Four  months'  confinement  at  hard  labor  and  for- 
feiture of  $10  per  month  for  the  same  period  ; 
for  non-commissioned  officer,  reduction  in  ad- 
dition thereto. 

One  month's  confinement  at  hard  labor  and  for- 
feiture of  $10  ;  for  non-commissioned  officer, 
reduction  in  addition  thereto. 


Six  months'  confinement  at  hard  labor  and  for- 
feiture of  $10  per  month  for  the  same  period  ; 
for  non-commissioned  officer,  reduction  in  ad- 
dition thereto. 


Dishonorable  discharge,  with  forfeiture  of  all 
pay  and  allowances  and  confinement  at  hard 
labor  for  two  years. 


>  Executive  Mansion,  AugiLst  10,  1896. 

To  the  present  schedule  of  punishments  for  enlisted  men,  established  under  Act  of  Congress  approved 
September  27,  1890,  aud  announced  in  Executive  order  of  March  aO,  1895,  as  promulgated  in  General 
Orders.  No.  16,  of  1895,  from  the  Headquarters  of  the  Army,  is  added:  "  First  class  privates  of  Engi- 
neers and  Ordnance  may  be  reduced  to  second-class  privates  of  those  corps,  respectively,  in  all  cases 
wlieie  for  like  offenses  on  the  part  of  non-commissioned  officers  their  reduction  in  grade  is  now  author- 

'^*''''  GROVER  CLEVELAND. 


MAXIMUM  LIMITS  OF  PUNISHMENT. 


'29 


Offenses. 


Under  32d  Auticle  of  War. 

AbBence  without  leave  :' 

One  hour  or  less 


For  more  than  one  to  six  hours,  in- 
clusive. 

For  more  than  six  to  twelve  hours, 
inclusive. 

For  more  than  twelve  to  twenty- 
four  hours,  inclusive. 

For  more  than  twenty-four  to  forty- 
eight  hours,  inclusive. 


For  more  than  two  to  ten  days,  in- 
clusive. 

For  more  than  ten  to  thirty  days, 
inclusive. 

For   more   than   thirty  to   ninety 
days,  inclusive. 


For  more  than  ninety  days. 


Under  33d  Article  op  War. 

Failure   to  repair  at  the  time  fixed,  or 
the  place  appointed,  etc. — 

For  reveille  or  retreat  roll-call  and 

11  p.  m.  inspection. 

For  assembly  of  guard  detail 

For  guard-mounting  (by  musician 

detailed  for  gunrl). 
For   guard-mounting  (by  musician 

not  detailed  for  guard). 

For  assembly  of  fatigue  detail 

For  parade, 

For  inspection  and  muster,  weekly 

or  monthly  inspection. 

For  target  practice 

For  drill    

For  stable  duty 

For  athletic  exercises 

For  post  school 


Limits  of  PunisbmeDt. 


Forfeiture  of  $1;  corporal,  $2;  sergeant,  $3; 
Ist  sergeant  or  non-commissioned  officer  of 
higher  grade,  %A. 

Forfeiture  of  $2;  corporal,  $3;  sergeant.  f4; 
1st  sergeant  or  non-commissioned  otficer  of 
higher  grade,  $5. 

Forfeiture  of  $3;  corporal,  $4 ;  sergeant,  $6; 
Ist  sergeant  or  non-commissioned  officer  of 
higher  grade,  $7. 

Forfeiture  of  $5;  corporal,  $6;  .sergeant.  $7; 
1st  sergeant  or  non-conamissioned  officer  of 
higher  grade,  f  10. 

Forfeiture  of  $5  and  five  days'  confinement  at 
hard  labor.  For  corporal,  forfeiture  of  |;8; 
sergeant,  flO;  1st  sergeant  or  non-commis- 
sioned odicer  of  higher  grade,  f  12,  or,  for  all 
non-commissioned  officers,  reduction. 

Forfeiture  of  $10  and  ten  day.s'  confinement  at 
hard  labor;  for  non-commissioned  officer,  re- 
duction in  addition  thereto. 

Forfeiture  of  $30  and  one  month's  confinement 
at  hard  labor;  for  non-commissioned  officer, 
reduction  in  addition  thereto. 

Dishonorable  discharge  and  forfeiture  of  all 
pay  and  allowances  and  three  mouths'  con- 
finement at  liard  labor. 

Dishonorable  discharge  and  forfeiture  of  all 
pay  and  allowances  and  nine  months'  con- 
finement at  hard  labor. 


Forfeiture   of   $1; 
1st  sergeant,  $4. 


corporal,   $2;    sergeant,   |3; 


Forfeiture  of  $5;  corporal,  f8;  sergeant,  $10. 


►  Forfeiture  of  |2;  corporal,  f3;  sergeant,  f5. 


>  Upon  trial  for  desertion  and  conviction  of  absence  without  leave  only,  the  court  may,  in  addition 
to  the  limit  prescribed  for  such  absence,  award  a  stoppage  of  tJie  amount  paid  as  reward  for  the 
apprehension  and  delivery  of  the  accused  to  the  military  authorities. 


730 


APPENDIX  P. 


Offenses. 


Under  38th  Article  of  War. 

Found  drunk — 

On  guard 

On  duty  as  head  cook 

On  extra  or  special  duty 

At  formation  of  company  for  drill 

or  on  drill. 

At  target-practice 

At  formation  of  company  for  dress 

parade  or  on  dress  parade. 

At  reveille  or  retreat  roll-call 

At  inspection  and  muster,  weekly 

or  monthly  inspection. 
At   inspection   of    company   guard 

detail  or  at  guard-mounting. 

At  stable  duty 

On  fatigue 

Under  40th  Article  op  War. 

Quitting  guard 


Under  SIst  Article  ok  War. 
Persuading  soldiers  to  desert 


Limit!  of  Punishment. 


Six  months'  confinement  at  hard  labor  and  for- 
feiture of  $10  per  month  for  the  same  period; 
for  non-commissioned  officer,  reduction  in  ad- 
dition thereto. 

Forfeiture  of  f  20. 


■  Forfeiture    of    |12 ;    for    non-commissioned 
<■     officer,  reduction  and  forfeiture  of  $20. 


Under  60th  Article  of  War. 

Under  62d  Article  of  War. 
Manslaughter 

Assault,  with  intent  to  kill 

Burglary 

Forgery 

Perjury 

False  swearing •• 

Bobbery 


Six  months'  confinement  at  hard  labor  and  for- 
feiture of  $10  per  month  for  the  same  period  ; 
for  non-commissioned  officer,  reduction  in  ad- 
dition thereto. 


Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  one  year's  confinement  at 
hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  four  years'  confinement 
at  hard  labor. 


Dishonorable  discharge,  forfeiture  of  all  pay 

and  allowances,  and   ten   years'  confinement 

at  hard  labor. 
Dishonorable   discharge,  forfeiture   of   all   pay 

and   allowances,  and   ten   years'  confinement 

at  bard  labor. 
Dishonorable    discharge,   forfeiture   of   all    pay 

and  allowances,  and  seven  years'  confinement 

at  hard  labor. 
Di.shonoral)le   discharge,    forfeiture    of   all  pay 

and  allowanees,  and  four  years'  confinement 

at  hard  labor. 
Diwhonorable    (liscliarKB,    forfeiture    of    a'li    ,my 

and  allowances,  and   four  _\eai«' confniemeiu 

at  hard  labor. 
Dishonoral)le    discliarge,   forfeiture    of   all    pay 

and  allowai.ces,  and   two  years'  confinement 

at  hard  labor. 
Dishonorable    discharge,   forfeiture   of  all    pay 

and   allowances,    and   seven  years'  confiue- 

ment  at  hard  labor. 


MAXIMUM  LIMITS  OF  PUNISHMENT. 


731 


Offeases. 


Under  62d  Articlk  of  yf  kk— Cont'd. 

Larceny  or  embezzlement  of  property — ' 
Of  the  value  of  more  than  $100  . .  . 


Of   the   value  of  f  100  or  less  and 
more  than  $50. 

Of   the   value   of   f  50  or  less  and 
Tiore  than  $20. 


Of  the  value  of  $20  or  less. 


Fraudulent  enlistment,  procured  by 
false  representation  or  concealment 
of  a  fact  in  regard  to  a  prior  enlist- 
ment or  discharge,  or  in  regard  to 
conviction  of  a  civil  or  military 
crime. 

Fraudulent  enlistment,  other  cases  of. 


Disobedience  of  orders,  involving  will- 
ful defiance  of  the  authority  of  a 
non-commissioned  officer  in  the  exe- 
cution of  his  office. 

Using  threatening  or  insulting  language 
or  behaving  in  an  insubordinate 
manner  to  a  non-commissioned  officer 
while  in  the  execution  of  his  office. 

Absence  fr  jni  fatigue  duty 

Absence  from  extra  or  special  duty   .  . . 

Absence  from  duty  as  company,  general 
mess,  or  hospital  head  cook. 

Introducing  liquor  into  post,  camp,  or 
quarters  in  violation  of  standing  or- 
ders. 

I)runkenne83  at  post  or  in  quarters 


LimitR  of  I*uniBhment. 


Drunkenness  and  disorderly  conduct, 
causing  the  offender's  arrest  and  con- 
viction by  civil  authorities  at  a  place 
within  10  miles  of  his  station. 

Noisy  or  disorderly  conduct  in  quarters. 

Druiik  and  disorderly  in  post  (jr  quar- 
ters. 

Abuse  by  non-commissioned  officer  of 
his  authority  over  an  inferior. 

Non-commissioned   officer   encouraging 

gambling. 
Non-commissioned  officer  making  false 

report. 
Sentinel  allowing  a  prisoner  under  his 

charge  to  escape  through  neglect. 
Sentinel    willfully    suffering    prisoner 

under  his  charge  to  escape. 


Dishonorable    discharge,   forfeiture   of   all    pay 

and  allowances,   and  four  years"  confinement 

at  hard  labor. 
Dishonorable   discharge,   forfeiture   of   all    pay 

and  allowances,  and  three  years'  confinement 

at  hard  labor. 
Dishonorable    discharge,   forfeiture   of   all   pay 

and  allowances,  and  two  years'  confinement 

at  hard  labor. 
Dishonorable   discharge,  forfeiture   of  all   pay 

and  allowances,   and  one  year's  confinement 

at  hard  labor. 
Dishonorable   discharge,  forfeiture   of   all    pay 

and    allowances,    and    confinement    at    hard 

labor  for  one  year. 


Dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  confinement  at  hard 
labor  for  six  months. 

Six  months'  confinement  at  hard  labor  and  for- 
feiture of  $10  {)er  month  for  the  same  period  ; 
for  non-commissioned  officer,  reduction  in  ad- 
dition thereto. 

Two  months'  confinement  at  hard  labor  and 
forfeiture  of  $10  per  month  for  the  same 
period;  for  non-commissioned  officer,  reduc- 
tion in  addition  thereto. 

Forfeiture  of  $4  ;  corporal,  $5  ;  sergeant,  $6. 

Forfeiture  of  $4  ;  corporal,  $5  ;  sergeant,  $6. 

Forfeiture  of  $10. 

Forfeiture  of  $3  ;  for  non-commissioned  officer, 
reduction  and  forfeiture  of  $5. 

Forfeiture  of  $3  ;  for  non-commissioned  officer, 

reduction  and  forfeiture  of  $5. 
Forfeiture  of  $10  and  seven  days'  confinement 

at  hard  labor  ;  for  non-commissioned  officer, 

reduction  and  forfeiture  of  $12. 

Forfeiture  of  $4  ;  corporal  $7  ;  sergeant,  $10. 
Forfeiture  of  $7  ;  for  non-commissioned  officer, 

reduction  and  forfeiture  of  $10 
Reduction,  three  months'  confinement  at  hard 

labor,  and  forfeitnre  of  $10  per  month  for  the 

same  period. 
Reduction  and  forfeiture  of  $5. 

Reduction,  forfeiture  of  $8,  and  ten  days'  con- 
finement at  hard  labor. 

Six  months'  confinement  at  hard  labor  and  for- 
feiture of  $10  per  month  for  the  same  period. 

Dishonorable  discharge,  forfeiture  of  all  pay 
aTui  allowances,  and  one  year's  confinement 
at  hard  labor. 


•  In  gpeciflcations  to  charges  of  larceny  or  euibezzlement  the  value  of  the  proi)erty  shall  be  stated. 


•32 


APPENDIX  P. 


Offenses. 


Under  62d  Article  of  War — Cont'd. 

Sentinel  allowing  a  prisoner  under  bis 

charge  to  obtain  liquor. 
Sentinel  or  member  of  guard  drinking 

liquor  with  prisoners. 
Disrespect  or  affront  to  a  sentinel 


Resisting  or  disobeying  sentinel  in-law- 
ful execution  of  his  duty. 


Lewd  or  indecent  exposure  of  person  . . 
Committing  nuisance  in  or  about  quar- 
ters. 

Breach  of  arrest  in  quarters 


Limits  of  Punishment. 


Two  months'  confinement  at  hard  labor  and  for- 
feiture of  |10  per  month  for  the  same  period. 

Two  months'  confinement  at  hard  labor  and  for- 
feiture of  $10  per  month  for  the  same  period. 

Two  months'  confinement  at  hard  labor  and  for- 
feiture of  $10  per  month  for  the  same  period; 
for  noncommissioned  officer,  reduction  in 
addition  thereto. 

Six  months'  confinement  at  hard  labor  and  for- 
feiture of  $10  per  month  for  the  same  period; 
for  non-commissioned  officer,  reduction  in 
addition  thereto. 

^  Three  months'  confinement  at  hard  labor  and 
!  forfeiture  of  $10  per  month  for  the  same 
I      period ;    for   non-commissioned   officer,    re- 

J      duction  in  addition  thereto. 

One  month's  confinement  at  hard  labor  and 
forfeiture  of  $10;  for  non  -  commissioned 
officer,  reduction  in  addition  thereto. 


Article  III. 

The  introduction  and  use  of  evidence  of  previous  convictions  is  subject 
to  the  following  regulations: 

Section  1.  Such  evidence  shall  be  limited,  except  as  provided  in  section  5 
of  this  article,  to  previous  convictions  by  courts-martial  of  an  offense  or 
offenses  within  one  year  preceding  the  date  of  commission  of  any  offense 
charged  and  during  the  current  enlistment."  These  convictions  must  be 
proved  by  the  records  of  previous  trials  and  convictions,  or  by  duly  authen- 
ticated copies  of  such  records,  or  by  duly  authenticated  copies  of  the 
orders  promulgating  such  trials  and  convictions.  Charges  forwarded  to  the 
authority  competent  to  order  a  general  court-martial,  or  submitted  to  a 
summar}^  garrison,  or  regimental  court-martial,  must  be  accompanied  by 
the  proper  evidence  of  previous  convictions. 

Sec.  2.  Whenever  a  soldier  is  convicted  of  an  offense  for  which  a  dis- 
cretionary punishment  is  authorized,  the  court  will  receive  evidence  of 
previous  convictions  (see  section  1  of  this  article),  if  there  be  any.  General, 
regimental,  and  garrison  courts-martial  will,  after  a  finding  of  guilty,  be 
opened  for  the  purpose  of  ascertaining  whether  there  is  such  evidence  and, 
if  so,  of  receiving  it. 

Sec.  3.  Previous  convictions  in  connection  with  inferior  court  offenses. — 
When  a  soldier  is  convicted  of  an  offense  the  punishment  for  which  under 
Article  II  of  this  order  or  the  custom  of  the  service  does  not  exceed  three 
months' confinement  at  hard  labor  and  forfeiture  of  three  months'  pay,  the 


MAXIMUM  LIMITS  OF  PUNISHMENT.  733 

punishment  so  authorized  may,  upon  proof  of  previous  convictions  (see  sec- 
tion 1  of  this  article)  be  increased  one-half  for  each  of  such  convictions  up  to 
the  limit  of  three  months'  confinement  at  hard  labor  and  forfeiture  of  three 
months'  pay,  and,  for  non-commissioned  officer  or  first-class  private,  re- 
duction in  addition  thereto.  Upon  proof  of  five  or  more  of  such  con- 
victions, if  not  less  tlian  fi\e  of  them  were  followed  by  sentences,  in  each 
case,  of  not  less,  substitutions  considered  (see  Article  VII),  than  forfeiture 
of  $10  or  confinement  at  hard  labor  for  20  days,  the  limit  of  punishment 
shall  he  dishonoral)le  discharge,  forfeiture  of  all  pay  and  allowances,  and 
confinement  at  hard  labor  for  three  months;  but  if  dishonorable  discharge 
be  not  adjudged,  the  limit  shall  !)(■  three  months'  confinement  at  hard 
labor  and  forfeiture  of  three  months'  pay,  and,  for  a  non-commissioned 
officer  or  first-class  private,  reduction  in  addition  thereto. 

Sec.  4.  Previous  convictions  in  connection  leith  general  court-martial 
offenses. — When  the  conviction  is  for  an  offense  punishable  under  Article  II 
of  this  order  or  the  custom  of  the  service  with  a  greater  punishment  than 
three  months'  confinement  at  hard  labor  and  forfeiture  of  three  months' 
pay,  such  punishment  shall  not  be  increased  by  reason  of  previous  con- 
victions, except  as  hereinafter  specified;  but  evidence  of  those  described 
in  section  1  of  this  article  will  be  submitted  to  the  court  to  aid  it  to  deter- 
mine upon  the  proper  measure  of  punishment  subject  to  the  limit  already 
authorized.  Upon  proof  of  five  or  more  of  such  convictions,  if  not  less 
than  five  of  them  were  followed  by  sentences,  in  each  case,  of  not  less,  sub- 
stitutions considered  (see  Article  VII),  than  forfeiture  of  $10  or  confine- 
ment at  hard  labor  for  20  days,  the  court  may,  if  the  authorized  limit  does 
not  include  dishonorable  discharge,  adjudge  dishonorable  discharge  and 
forfeiture  of  all  pay  and  allowances  with  the  authorized  confinement. 

Sec.  5.  On  a  conviction  of  desertion,  evidence  of  convictions  of  previous 
desertions  may  also  be  introduced,  irrespective  of  the  enlistment  or  of  the 
period  which  iiiay  have  elapsed  since  such  conviction  or  convictions. 

Sec.  6.  When  a  non-commissioned  officer  is  convicted  of  an  offense  not 
punishable  with  reduction,  he  may,  upon  proof  of  one  previous  conviction 
within  the  prescribed  period  (see  section  1  of  this  article),  be  sentenced  to 
reduction  in  addition  to  the  punishment  already  authorized. 

Sec.  7.  First-class  privates  may  be  reduced  to  second-class  privates  in 
all  cases  where  for  like  offenses  on  the  part  of  non-commissioned  officers 
their  reduction  in  grade  is  now  authorized. 

Article  IV. 

When  a  soldier  shall,  on  one  arraignment,  be  convicted  of  two  or  more 
offenses,  none  of  which  is  punishable  under  Article  II  of  this  order  or  the 
custom  of  the  service  with  dishonorable  discharge,  but  the  aggregate  term 


734  APPENDIX  P. 

of  confinement  for  which  as  specified  in  said  article  may  exceed  six  months, 
dishonorable  discharge  with  forfeiture  of  pay  and  allowances  may  be 
awarded  in  addition  to  the  authorized  confinement. 

Article  V. 

If,  in  any  case  where  the  limit  of  punishment  is  dishonorable  discharge, 
forfeiture  of  all  pay  and  allowances,  and  confinement  at  hard  labor  for  a 
stated  number  of  months,  dishonorable  discharge  be  not  adjudged,  the 
limit  of  forfeiture  shall  be  all  pay  due  and  to  become  due  during  the  pre- 
scribed limit  of  confinement. 

Article  VI. 

This  order  prescribes  the  maximum  limit  of  punishment  for  the  offenses 
named,  and  this  limit  is  intended  for  those  cases  in  which  the  severest 
punishment  should  be  awarded.  In  other  cases  the  punishment  should  be 
graded  down  according  to  the  extenuating  circumstances.  Offenses  not 
herein  provided  for  remain  punishable  as  authorized  by  the  Articles  of  War 
and  the  custom  of  the  service. 

Article  VII. 

Substitutions  for  punishment  named  in  Article  II  of  this  order  are 
authorized  at  the  discretion  of  the  courts  at  the  following  rates: 

Two  days'  confinement  at  hard  labor  for  one  dollar  forfeiture,  or  the 
reverse;  one  day's  vsolitary  confinement  on  bread-and-water  diet  for  two 
days'  confinement  at  hard  labor  or  for  one  dollar  forfeiture:  provided 
that  a  non-commissioned  officer  not  sentenced  to  reduction  shall  not  be 
subject  to  confinement;  and  provided  that  solitary  confinement  shall  not 
exceed  fourteen  days  at  one  time,  nor  be  repeated  until  fourteen  days 
have  elapsed,  and  shall  not  exceed  eighty-four  days  in  one  year. 

THEODORE  ROOSEVELT. 


INDEX. 


AbandonioK   post.   413-415.      (See  42d  Article  of 

War.) 
Abatement,  pleaH  io,  107-110  (see  Pleas): 

accuser,  name  of,  109. 

additions,  false,  lOT. 

character,  107. 

charges,  difference  in  copies,  108. 

effect,  107. 

failure  to  serve  charges,  109 

false  additions.  107. 

idem  sunans,  107. 

misdescriptions,  107, 108. 

misnomers,  107, 108. 

nature  of  pleas,  107. 

procedure,  110. 

waiver,  107,  109,  110. 
Absence,    13G,    137,  359,   300    (see     7f;i     and    12</i 
Articles  of  War): 

certificates  of,  365. 

of  judge-advocate,  136. 

of  member,  136. 

reasons  for,  365,  366. 

reports  of,  359. 
Absence  without  leave,  402^04   (see  32d  and  i\st 
Articles  of  War): 

character  of  absence,  402.  403. 

commissioned  officers,  403,  404. 

enlisted  men,  402-404. 

intent,  402,  403. 

forfeitures,  403,  404. 

stoppages,  403. 

time  lost,  404. 
AbsenteeN,  359,  360  (see  Wh  Article  of  Wor): 

certificates,  365. 

lists  of.  360. 

reasons  for  absence,  365,  366. 

reports  of,  359. 
Abusive  languase,  471.    (See  21s(  and  61*(  Articles 

of  War.) 
Acting  an  Npies,  562,  563. 
Accident,  304,  365  (see  Property): 

avoidable,  364. 
homicide  by,  448. 
inevitable   3C4.  365. 
imavoidable,  304,  365. 
Accountability  for  property,  etc.,  364,  365: 
disciplinary,  364,  365. 
fiscal,  361,  365. 


AccoQDts,  pay,  duplication  of,  470.    (See  tCth  and 

Ol.vf  Articles  of  War.) 
Accused: 

as  witness,  132. 

amenability  to  trial,  98,  99. 

arraignment,  96-118 

challenges,  85-90. 

continuances,  90,  91. 

copy  of  record,  553,  554. 

counsel,  36-40. 

defense,  124-133. 

pleas,  96-100. 

postponements,  90,  91. 

revision  proceedings,  158-160. 

statement,  132,  133. 
Accuser,  as  convening  officer,  17, 18: 

challenge  to,  88. 

name  of,  109. 
Accomplices,  as  witnesses,  257: 

creilibility  of,  257. 
Accoutrements,  360,  364,  372: 

accounlabiUty,  360,  363,  364. 

loss,  372. 

sale,  372. 

spoiling,  372. 
Acquittal,  145,  146: 

effect.  145,  146. 

forms,  146. 

plea  of  previous,  100,  101. 

reiuarlss  in,  146. 

tie  vote,  operates  as,  146. 
Actual  contempt,  508.     (See  mh  Article  of  War.} 
Additions,  false,  107,  108  (see  Pleat): 

to  sentence,  155,  157. 
Adjournments,  135,  136,  195  (see  Trial): 

control  of  court  over,  135. 

dissolution  of  court  by,  13C. 

effect  of,  135,  136. 

record  of,  195. 

time,  135. 

to  anotlier  place,  135. 
AdmiNsions  af^ainst  interest,  269.  270 

without  piCK)f,  292. 
AdTisin^  desertion.  432,  433  (see    57<;i  Article   of 
War): 
nature  of  offense,  433. 
penalty,  433. 
Affldavits,  229,  294  (see  Depositions): 

785 


Tao 


INDEX. 


A  ffldarits  — Continued, 
authority.  229.     (Note  2.) 
character,  229.    (Note  2.) 
CTidential  value,  229. 
execution,  229. 
ex  parte  in  character,  229. 
nature,  294. 
not  depositions,  294. 
purpose,  229.  230. 
Afflrmation,  119.    (See  Oa//is.) 
Agreements,    fraudulent,  463.     (See  60fA  Article 

of  War.) 
Alarms,  false,  414,  415.     (See  41st  Article  of  War.) 
Albemarle  Articles,  340.    (See  Articles  of  War.) 
Alibi.  'iJO.    (See  Defenses.) 
Allegrations  in  speciflcationg,  72-75: 
intent,  642. 
names,  72. 
persons,  72. 
place,  73,  74. 
time,  73.  74. 
Allowances,  forfeitures  of,  150-153. 
Alternate  forms,  72.    (See  Charges.) 
Amenability  to  military  jurisdiction : 
betrinning  of.  54. 
commissioned  officers,  54. 
conscripts,  51. 
double,  43. 
enlisted  men,  54,  55. 
military  establishment,  47. 
militia,  47-51. 
retainers  to  camp,  47,  52. 
volunteers,  47. 
Amendment  of  charges,  75.    (See  Charges.) 
Ammunition,  .363,  364: 
accountability,  360,  364. 
sale,  372. 
spoiling,  372. 
waste.  372. 
Appeal  from  inferior  court,  225,  228: 
from  summary  court,  213,  214. 
procedure  in,  227,  228. 
to  general  court,  225,  228. 
Appearance  as  nitness,  245-250: 
civilians,  24.5-250. 
compulsory,  248-2.50. 
military  persons,  245. 
subprjenas,  24.5-248. 
writ  of  attachment,  248-250. 
Apprehension  of  deserters,  423-428: 
by  whom  made,  423-428. 
legality  of.  423-428. 
payinenl  of  reward,  423-428. 
rewards  for,  423-428. 
ApproTal  of  proceedings,  199-202: 
death  sentences,  54.3,  544. 
dismissal  of  officer,  544,  545. 
sentences  respecting  general  officers,  546. 
Arguments,  132,  133  (see  Statements): 
accused,  129,  132. 
closing,  133. 
defense,  132,  133. 
latitude  in,  132,  1.33. 
opening,  132,  133. 


Arguments— Con^intted. 
order  of,  132,  133. 
prosecution,  132,  133. 
waiver  of,  133. 
Arms,  ■'^03,  364  (see  Returns): 
accountability  for,  303. 
disciplinary  responsibility,  363. 
fiscal  accountability,  363. 
sale,  372. 
spoiling,  372. 
Army,  command  in,  559-561: 
employment  of,  323-336. 
rank,  559-.^61. 
Army  regulations,  6-10: 
authority,  0. 
classification,  8. 
conformity  to  law,  7, 
definition,  6. 
obligatory  force,  6, 
violation  of,  how  chargeable,  474. 
Arraignment,  90-119  (see  89<7i  Article  of  War): 
demurrers,  113,  114. 
general  issue,  114-117. 
inconsistent  statements,  115,  116. 
pleadings,  96. 
pleas,  96-113. 
abatement,  107-113. 
bar  of  trial,  100-107. 
jurisdiction,  96-100. 
standing  mute,  118. 

statements  inconsistent  with  plea,  115,  116. 
statute  of  limitations,  111-113. 
Array,  challenge  to,  86. 

Arrest,  61-68,  481,  482,  487,  488  (see  6hth  Article  of 
War): 
actual  breach  of,  63. 
breach  of,  63,  64,  481. 
actual,  63. 
constructive,  63. 
penalty,  63. 
technical,  63. 
commanding  officer : 
power  to  arrest,  61,  481,  482. 
to  extend  limits,  62,  481,  482. 
to  release,  64. 
to  terminate,  64. 
control  over,  63. 

by  court-martial,  62. 
crimes,  etc.,  61. 
duration  of,  64,  487,  488. 
duty  of  arrested  officer,  62. 
emergency,  61,  65,  66 
execution  of,  61,  481,  482. 
extension  of  limits,  62,  488, 
how  imposed,  61. 
limits,  62,  482,  483. 
march,  62. 
medical  officers,  482. 
nature  of  restraint,  63. 
not  demandable,  62. 
non-commissioned  officers,  96. 
officer,  Gl,  481-488. 
official  visits,  62. 
order,  61 . 


INDEX. 


737 


Arrest-  Continued. 
power  to  arrest,  61,  65,  66. 
privilege  from,  488. 
quarters,  6^. 
release,  64. 
remote  posts,  488. 
restriction  on.  64. 
service  of  charges,  80,  81. 
status  of,  62,  483. 
sword,  surrender  of,  481. 
ten  days  thereafter,  interpretation,  488. 
tent,  6«. 

termination  of,  64. 
twenty-fourth  Article,  65. 
twenty-fifth  Article,  66. 
visits,  62. 
Arson,  441,  442,  543  (see  58<A  Article  of  War): 
actual  burning,  442. 
burning,  extent  of,  443. 

eflnition,  441. 
intent,  441,  442. 
malice,  442. 
ArticleK  of  War : 
amendiiieuts  of  1777,  343. 

1786,  342. 
American,  of  1775,  342. 

1776,  342,  602-618. 

1786.  019-624. 

1806,  342,  625-640. 

1874,  343. 
British  articles  : 

Albemarle's,  340. 

Arundel's,  340. 

code  of  1774,  581-601. 

Henry  VII.,  339. 

Northumberland,  340. 

Prince  Rupert,  340. 

Richard  II.,  .339. 

Rupert,  340,  567-580. 
charges  under,  641-643. 
commissioned  officer,  343. 
enlisted  man,  343. 
history,  3.39-343. 
interpretation,  343. 
limitation  on  punishments,  343,  344. 
origin.  3.39-843. 
publication,  562. 
reading  to  troops,  562. 
rules  of  Interpretation,  .343. 
soldier,  343. 
sources,  339-343. 
Article  1 : 
history,  :M4. 

subscription  to  articles,  344. 
Article  2  : 
administration  of  oath,  345. 
civil  magistrate,  345. 
enlistment,  oath  of.  ,344,  845. 
form  of  oath,  344. 
history,  344. 
oath,  344. 
Article  3  : 
charges  under,  350,  351,  643. 


Article  %— Continued. 

enlistment,  346-350. 

form  of  charge  under,  643. 

fraudulent  enlistment,  351.  352. 

method  of  enlistment,  348-350. 

offense  under,  350,  351. 

prohibited  enlistments,  346- S51. 
aliens,  346,  347. 
deserters,  346,  347. 
ignorant  persons,  346,  347. 
insane,  .3-16,  347. 
infamous  persons,  346,  347. 
minors,  346,  347. 
Article  4,  352-358: 

discharge  by  executive  order.  .355,  366. 
by  expiration  of  service,  353,  355. 
by  purchase,  358. 
without  honor,  357. 

dishonorable  discharge,  3.56.  3.57. 

effect  of  discliarge,  352,  353,  355. 

forms  of,  353-358. 

history  of  article,  .352. 

honorable  discharge,  3,53,  355. 
Article  5,  358  (see  False  Muster) : 

form  of  charge,  644. 

history,  .358. 

unlawful  muster,  358. 
Article  6,  ,3,59  (see  Musters) : 

form  of  charge,  644. 

history,  359. 

no  intent  necessary,  359. 

offense,  nature  of,  359. 

rolls  need  not  be  false,  359. 
Article  7,  3.59,  360  (see  Returns)  : 

absent  officers,  .3.59,  360. 

by  whom  rendered,  3,59,  3C0. 

character  of  returns  required,  359. 

failing  to  make  returns,  359. 

form  of  charge,  644. 

history  of  articles.  359. 

omitting  to  make  returns,  359. 

returns,  character,  3.59,  360. 
contents,  .359.  360. 
list  of  absentees,  3.59,  360. 
to  whom  rendered,  359. 
Article  8,  360.  361: 

accountability,  360. 

false  returns.  360. 

form  of  charge,  645. 

history,  360. 

returns,  360. 

scope  of  article,  360,  861. 

vouchers.  360. 
Article  tf.  361-363: 

captured  property,  361,  362. 

commanding  officer,  duty  of,  361,  9CB. 

compensation  for,  363. 

disposition  of.  361-363. 

ownership,  362,  363. 

personal  property,  362,  363. 

private  property,  362,  363. 

recapture  of  property.  363. 

title  to  captures,  362,  863. 


738 


INDEX. 


Article  10,  36»-365  (see  Property) : 
accidents,  364,  365. 
accoutrements.  363-365. 
actual  service,  365. 
ammunition,  363-365. 
clothing,  363-  365. 
history.  304. 

responsibility  for  property,  364,  365. 
Article  11.  365: 
furloughs,  365. 
history,  365. 

power  of  company  commander,  365. 
post  commander,  365. 
regimental  commander,  365. 
restriction  on  authority,  365. 
Article  12,  365,  366  (see  Ith  Article  of  War) : 
absentees,  365,  366. 
certificates  of  absence,  360,  365,  366. 
lists  of  absentees,  360,  355,  366. 
by  whom  made,  366. 
to  whom  reported,  336. 
transmission  of  certificates,  365,  366. 
Article  13,  366  (see  Articles  7  and  12) : 
absence,  366. 
false  certificate,  360. 
form  of  charge,  645. 
history,  360. 
pav,  .360. 
Article  14,   366-369  (see  Zth,  eth,   12th  and  IZth 
Articles  of  War)  : 
certificates,  306,  367. 
evidence,  367. 
false  certificates,  367. 

musters,  367-369. 
form  of  charge,  645. 
history,  366,  367. 
muster  in,  367,  368. 
out,  367,  368. 
rolls,  367,  368. 
mustering  ofiScer,  368. 
musters,  how  made,  367,  368. 
offense  described,  367-369. 
Article  13 : 
accountability,  369. 
form  of  charge,  646. 
history,  369. 
neglect,  369,  370. 
offense,  nature  of,  369,  370. 
penalty,  .369. 
stoppages.  370-372. 
Article  16,  37-J  (see  Ammunition)  : 
ammunition,  372. 
form  of  charge,  646 
history,  372. 
waste,  etc.,  372. 
Article  17,  372,  374: 
accoutrements,  378. 
arms,  .372. 
clothing,  372,  .374. 

title  to,  374. 
damage,  372,  373. 
form  of  charge,  647. 
hor«e.  372,  373. 
improper  diaposition,  378. 


Article  n— Continued. 

pecuniary  responsibility,  378. 
Article  18,  374,  375  : 
duty,  374. 
extortion,  374,  375. 
form  of  charge,  648. 
imposition,  374,  375. 
necessaries,  374. 
purpose  of  Article,  374. 
Article  19,  375,  376  : 
contemptuous  words,  375,  376. 
Congress,  375. 

disrespectful  words,  375,  376. 
form  of  charge,  648. 
nature  of  offense,  375,  376. 
penalty,  375,  376. 
President.  375,  376. 
"Vice-President,  375,  376. 
Article  20,  376,  377  : 
commanding  officer,  376,  -377. 
disrespect,  376,  377. 
form  of  charge,  648. 
history,  376. 

intent  not  essential,  377. 
nature  of  offense,  376,  377. 
purpose,  376,  377. 
Article  21,  378-389  (see  Orders)  : 

abusive  language,  389. 

assaults,  387,  388. 

defenses,  386.  387. 

disobedience  of  orders,  382-387. 

drawing  and  lifting  weapon,  389. 

forms  of  charges,  649-651. 

history,  378,  379. 

justification,  386,  387. 

language  in  violation  of,  389. 

negative  disobedience,  384. 

obedience  to  orders,  379-382. 

orders,  379-382. 

penalty  for  disobedience,  378. 

positive  disobedience,  384. 

responsibility  for  obedience,  385-387. 

striking  superior  officer,  387,  388. 

superior  officer,  387,  388. 

threatening  language,  389. 
Article  22,  389-391  (see  Mutiny)  : 

beginning  a  mutiny,  390. 

causing  a  mutiny,  390. 

forms  of  charges,  651,  652. 

history  of  articles,  389. 

inciting  a  mutiny,  390. 

insubordination,  390. 

mutiny,  390-393. 

purpose  of  article,  391. 

sedition,  390. 
Article  23,  391-393  (see  22d  Article  of  War)  : 

duty  of  suppression,  391,  392. 

failure  to  give  information,  392. 

force,  employment  of,  392,  393. 

form  of  charge,  652. 

history,  391. 

misprision,  392. 

quelling  mutiny,  391-393. 

rule  as  to  force  used,  392,  398. 


INDEX. 


739 


Article  24,  393,  394  ; 

arrests,  .393. 

duty  required  by,  393,  394. 

form  of  charge,  658. 

history,  393. 

inferiors  in  rank,  duty  of,  393,  394. 

non-cnnimissioneil  officers,  duty  of,  393,  394. 

officer,  meaning  of  term,  393. 

power  conferred,  394. 

what  cnmlltions  govern,  393. 
Article  2.').  394-.396  : 

arrests,  39G. 

history,  395. 

jurisdiction  conferred,  396. 

offenses  under,  chargeable  under  Article  62,  396. 

procedure  tmder,  •■396. 

purpose  of  Article,  395. 
Article  26,  394-398  (see  'Hth,  25ffc,  and  ^ith  Arti- 
cles of  War)  : 

Challenges,  394-398. 

form  of  charge,  653,  654. 

history.  390,  397. 

nature  of  challenge,  393. 

penalty,  391. 

proof,  397,  398. 
Article  27,  391-.398  (see  24th,  25th,  and  26th  Arti- 
cles of  ll'ar)  : 

challengers.  394-398. 

duty  of  commander  of  guard,  397,  398. 

duty  of  commanding  officer,  393. 

form  of  charge,  654. 

history,  394.  395. 

nature  of  offense,  397,  393 

penalty.  394,  .395. 
Article  28,  .394-398: 

challenges,  394-398. 

form  of  charge,  654. 

history.  .394,  395. 

refusal  to  accept  challenges,  395. 
Article  29,  395-400  (see  Redress  of  Wrorigs)  : 

duty  of  commander,  399. 

history,  399. 

proceduie.  399. 

redress,  399. 
Article  80,  400-402  (see  Redress  of  Wrongs)  : 

appeals,  400. 

hearing,  400,  401. 

history,  400. 

investigation,  nature  of,  400. 

jurisdiction.  400,  401. 

limitation  on  authority,  401, 

not  a  trial,  400. 

procedure,  400,  401. 

scope  of  article,  400. 
Article  31  : 

form  of  charge,  654. 

history.  401. 

lying  out  of  quarters,  401. 

police  regulation,  400. 
Article  32,  402-404  (see  47f/i  Article  of  War): 

absence,  character  of,  402,  403. 

commissioned  officers,  403,  404. 

defenses,  402. 

forfeitures,  403. 


Article  tt2— Continued. 

form  of  charge,  655. 

history,  402. 

Stoppages,  403. 

time  lost,  405,  404. 
Article  3a,  404,  405  : 

application,  404,  405. 

designation  of  place  of  parade,  404. 

failure  to  repair,  etc.,  404. 

form  of  charge,  655. 

history,  404. 

necessity,  404,  405. 

offense,  nature  of,  404,  405 
Article  34,  405  : 

form  of  charge,  655. 

history,  405. 

purpose  of  article,  405. 

written  permission,  405. 
Article  35  (see  34f/i  Article  of  War)- 

form  of  charge  under,  656. 

history,  405,  406. 

purposes,  405. 
Article  36  (see  37 th  Article  of  War)  : 

application,  400. 

being  excused,  406. 

contract  of  hiring,  406. 

form  of  charge,  656. 

hiring  duty,  400. 

history,  406. 

illegality  of  contract,  406. 

power  to  excuse,  406. 
Article  37,  400  (see  36<;i  Article  of  War) : 

connivance  at  hiring,  436. 

form  of  charge,  656. 

history,  436. 

knowledge  of  officer,  406. 

officers,  duty  of,  436. 

purpose  of  article,  436. 
Article  38: 

appearance  at  formation  drunk,  408,  409. 

commanding  officer,  408. 

commissioned  officer,  408. 

corporal  punishment,  407,  409. 

drunkenness  on  duty,  406-409, 
off  duty,  408.  409. 

enlisted  men,  408. 

forms  of  charges,  657,  658 

history,  407. 

medical  officer,  403 

off  duty,  408. 

on  duty,  408. 

penalty,  409. 
Article  39  (see  Sentinels) : 

defenses,  410. 

duty  of  sentinels,  410-413 

excessive  duty  no  defense,  410. 

form  of  charge,  658. 

history,  409,  410. 

leaving  post,  409-412. 

quitting  post,  409-412. 

sentinels,  410-412. 
duty  of.  410 

execution  of  orders,  411,  412. 
respect  for,  411.  412. 


r40 


IMJEX. 


Article  39-Coii^)iiiPfi. 

sleeping  on  post.  409,  410. 
Article  40: 
form  of  charpe.  659. 
leave  of  siipei'ior,  JIS,  414. 
necessity,  413,  414. 
quitting  guard,  etc.,  413,  414. 
Article  41  : 
alarm,  413.  414. 
false  alaim.  413,414. 
form  of  chaige,  659. 
history,  413. 

how  occasioned.  413,  414. 
purpose  of  article,  413,  414. 
Article  42  : 
abandonment  of  post.  41.5. 
arms  and  ammunition,  415. 
cowardice,  415. 
forms  of  charges,  659. 
history,  415. 
misbehavior,  415. 
pillage.  416. 
plundering,  416. 
Article  43.416: 
abandoning  post,  garrison,  etc.,  415,  416. 
compulsion,  416. 
form  of  charge,  660. 
history,  416. 
mutiny,  416. 
penalty,  416. 
Article  44  : 

countersign,  417. 

form  of  charge,  660. 

history,  416,  417. 

intent,  417. 

parole,  417. 

scope  of  article,  417. 
Article  45,  417,  418  (see  46<;i  Article  of  War)  : 

application  of  article,  417,  418. 

enemy,  public,  418. 

form  of  charge,  661. 

harboring  enemy,  417. 

history,  417. 

holding  correspondence  with  the  enemy,  418. 

martial  law,  417,  418. 

relieving  the  enemy,  418. 

whosoever,  417. 
Article  46  (see  Ahth  Article  of  War) : 

correspondence,  418. 

enemy,  418. 

form  of  charge,  C62. 

giving  intelligence,  418. 

history,  417. 

holding  correspondence,  418. 

intelligence,  giving,  418. 
Article  47,  418^-29  (see  Desertion)  : 

apprehension  of  deserters,  423-428. 

deserters,  420-426. 

desertion,  418-429. 

form  of  charge,  662. 

history,  418,  419. 

intent  in  desertion,  420,  421. 

rewards,  423-428. 

Statutory  consequences,  4^7-429. 


Article   48: 
aljsentees  without  leave,  430. 
history.  430. 

making  good  time  lost.  4.30. 
restoration  to  duly,  430,  431. 
waivei-  (^f  liability,  431. 
Article  49.  431  : 
constructive  desertion,  431. 
by  whom  committed,  431. 
niiture  of  offense,  431. 
statutory  character,  431. 
form  of  charge,  002. 
history,  431. 
scope  of  article,  431. 
Article  50,  431,  431  (see  Desertion)  : 
enlisting  in  another  corps,  431,  438. 
entertaining  deserter,  431,  432. 
form  of  charge,  663. 
history,  432. 
object  of  provision,  438. 
penalty,  432. 
Article  51,  432,433: 
advising  to  desert,  432,  433. 
form  of  charge,  663. 
history,  432. 

persuading  to  desert,  433. 
Article  52,  433,  434  : 
attending  divine  service,  434. 
history,  4.34. 
penalty,  434. 
procedure,  434. 
Article  63,  434,  435  (see  Profanity)  : 
enlisted  men,  434. 
history,  434,  435. 
officers,  434. 
penalty,  434. 
profanity,  434,  435. 
Article  54,  435,  436: 
beating,  435. 

citizens,  injuries  to,  435,  436. 
commanding  officer,  duty  of,  435,  436. 
complaints  under,  435,  4:36. 
extent  of  reparation,  435. 
form  of  charge,  664. 
history,  435. 

ill  treatment,  complaints  of,  435,  436. 
justice  to  be  done,  4.35,  436. 
nature  of  remedy,  435. 
offender,  liability,  435,  436. 
pay  of  offenders,  435,  436. 
procedure,  435,  436. 
reparation,  4.35,  436. 
riot,  435. 

stoppages,  435,  436. 
Article  55  : 
behavior  required,  436,  437. 
defense,  437. 
fish-ponds,  436. 
form  of  charge,  665. 
gardens,  436. 

general  officer,  orders  as  authority,  437. 
grain-fields,  430. 
history,  436. 
inclosures,  436. 


INDEX. 


'41 


Article  55 — Continued. 

meadows,  430. 

orders  as  a  defense,  437. 

prevention  of  disorder,  436,  437. 

purpose  of  article,  436,  437. 

spoil,  commission  of,  436,  437. 

trees,  136. 

warrens,  436. 

waste,  commission  of,  436,  437. 
Article  56  : 

application  of  article,  437. 

foreign  parts,  437. 

form  of  charge,  666. 

history,  4.37. 

provisions,  persons  bringing  in,  437. 

violence  to  persons,  etc.,  437. 
Article  57  : 

by  whom  committed,  438,  439. 

extent  of  operation,  438,  439. 

foreign  parts,  438,  439. 

form  of  charge,  C66. 

history,  438.  439. 

nature  of  offense,  438,  439. 

rebellion,  4.38,  439. 

safeguards,  438,  439. 

territory  in  rebellion,  438,  439. 
Article  58: 

application,  440,  441. 

arson,  141,  442. 

assault  and  battery,  442. 
with  intent  to  commit  rape,  458,  453. 
with  intent  to  kill,  44i,  443. 

battery,  44'.!. 

burglary,  44;}-445. 

embezzlement,  450-458. 

false  swearing,  456. 

forgery.  453,  454. 

forms  of  charges,  666-669. 

jurisdiction  conferred,  440,  441. 

history,  439,  440. 

homicide,  44,5^49. 

larceny,  449. 

manslaughter,  446,  447. 

mayhem.  453. 

measure  of  punishment,  441,  443. 

murder,  445,  446. 

time  of  war,  441. 

perjury,  454-456. 

punishment,  441. 

rape,  4.52. 

receiving  stolen  goods,  452, 

robbery,  450. 

self-defense,  448,  449. 

war.  time  of,  441. 

when  applicable,  441. 

wounding,  etc.,  443. 
Article  59  : 

application,  456-458. 

applications  under,  458. 

by-laws,  municipal,  458. 

civilians  not  subject  to,  459. 

concurrent  jurisdiction,  459. 

crimes,  456--458. 

directory  in  charsicter,  459. 


Article  'i9— Continued. 
forms  of  charges.  669. 
history,  456,  457. 
law  of  the  land,  457. 
municipal  ordinances,  458. 
offense  against  United  States,  459. 
party  injured,  458. 
persons  subject  to,  459. 
procedure,  458,  459. 
process,  service  of,  459. 
purpose,  4.56,  457. 
State  laws,  456-100. 
status  of  accused,  457. 
surrender,  how  effected,  458,  459. 
Territory,  460. 
Article  60,  10.3-168: 
agreements  to  defraud,  463. 
blank,  receipts  in,  464. 
charges  under,  466,  670-674. 
claims,  fraudulent,  463. 
conspiracy  to  defraud,  463. 
embezzlement,  464,  465. 

intent,  465. 
equipment,  purchase  of  articles  of,  467. 
expiration  of  service,  no  bar  to  trial,  468. 
forgery,  463. 

forms  of  charges,  670-674. 
fraud,  46:i-168. 
fraudulent  claims,  463. 
history,  462,  463. 
intent,  465. 
larceny,  464,  465. 
misapplication,  466. 
misappropriation,  466. 
negligence,  464. 
payments,  fraudulent,  464. 

short,  464. 
penalty,  46v',  467,  46S. 
presenting  false  claim,  463. 
property,  offenses  against,  464-466. 
receipts  in  blank,  464. 
short  payments,  464. 
stealing,  164. 
Article  61,  468-472: 
abusive  language,  469. 
assaults,  471. 

character  of  offense,  468-470. 
conduct  unbecoming,  etc.,  468-470. 

by  whom  determined,  468-170. 

need  not  directly  affect  military  service,  470. 
crime,  469^7-2. 
custom  of  service,  469. 
debt.  471. 

service,  fraudulent,  471. 
drunkenness,  471,  472. 
duplication  of  pay  accounts,  470. 
evidence,  468. 
fighting,  469,  470. 
false  reports,  469. 
forms  of  charges,  674. 
fraud,  469-471. 
gambling,  471. 
history,  468. 
infamous  conduct,  468. 


V42 


INLEX. 


Article  &\  — Continued . 
intoxication,  46S. 
nature  of  offense.  46S-J70. 
neglect  of  pecu^iiary  liability,  470. 
pay  accounts,  duplication  of,  470. 
penalty,  471,  472. 
pledfre.  470. 

scandalous  conduct,  468. 
violation  of  pledge,  470. 
Article  62,  472-478: 
breach  of  peace,  475. 
capital  crimes,  476,  477. 
charging  of  offenses,  476,  477. 
civil  crimes,  476. 
crimes  not  capital,  473-476. 
disorders,  474. 
drunkenness,  474. 
findings,  477,  478. 
forms  of  charges,  676-679. 
fraud,  474. 
history,  472,  473. 
lesser  kindred  offense,  477. 
military  discipline,  relation  to,  473,  474. 
military  duty,  standards  of,  473,  474. 
minor  included  offenses,  477. 
nature  of  offense,  473-478. 
neglects,  473,  474. 
negligence,  473,  474. 
prejudice  of  good  order,  etc.,  473-475. 
standard  of  performance,  473,  474. 
Article  63,  478,  4'i^  (sv*i  Jurisdiction)  : 
all  persons,  etc.,  478. 
application  of  article,  478,  479. 
armies  in  the  field,  478,  479. 
camp-followers,  478. 
civil  employees,  478,  479. 
civilians,  478,  479. 
history,  478. 
interpretation,  478,  479. 
peace,  not  applicable  in  time  of,  478,  479. 
procedure  under,  478,  479. 

restriction  on  jurisdiction,  479. 
Article  64,  479,  480  (see  Jurisdiction)  : 

all  times  and  places,  479,  480. 

application  of  article,  479,  480. 

history.  479,  480. 

jurisdiction,  extent  of,  479,  480. 

militia,  479,  480. 

offenses,  not  territorial,  479,  480. 

scope  of  article,  479,  480. 
Article  65,  480-483  (see  Arrest)  : 

arrest,  how  executed,  481,  482. 

arrest,  under  24th  and  25th  Articles. 

breach  of  arrest,  481. 

commanding  oflQcer.  powers  of,  482. 

courts,  power  over,  482. 

execution  of  arrest.  481,  482. 

extension  of  limits,  483. 

form  of  charge,  679. 

history.  480,  481. 

limits  of  arrest,  483. 

medical  officers,  482. 

statue  of  arrest,  483. 
.    8W0I  rf,  surrender  of,  481. 


Article  Go— Continued. 

restrictions  on  arrested  officer,  483. 
Article  66,  483-485  (see  Confinement)  : 
arrest  of  non-commissioned  officers,  484. 
character  of  restraint,  484. 
confinement,  483-485. 
execution  of,  484. 
status,  484-485. 
execution  of  confinement,  484. 
history,  483. 
labor  required,  485. 
nature  of  confinement,  484,  485. 
status,  485. 

work  required  of  prisoners,  485. 
Article  67,  485,  486  (see  Confinement)  : 
account  in  writing,  485,  486. 
character  of  prisoner,  486. 
duty  of  receiving  officer,  486. 
history,  485. 

refusal  to  receive  prisoner,  485. 
Article  68,  486  (see  Confinement): 
general  prisoners,  486. 
form  of  charge,  680. 
history,  486. 
report,  486. 
time  of  report,  486. 
when  made,  486. 
Article  69,  486, 487  (see  Arrest  and  Confinement) : 
escape,  487. 
form  of  charge,  680. 
history,  487. 
negligence,  487. 
reasonable  cause,  487. 
release,  487. 
j  Article  70,  487  (see  vl?-resO  : 
arrests,  duration  of,  487. 
directory  in  character,  487. 
liistory,  487. 
limit  of  arrest,  487. 
wrongs  under,  remedy,  487. 
Article  71,  487-489  (see  Arrest): 
duration  of  arrest,  488. 
history,  487,  488. 
limitation  of  time,  488,  489. 
release  from  arrest,  488,  489. 
Article  72,  489-492  (see  Convening  Authority)  : 
accuser  or  prosecutor,  490,  491. 
convening  authority,  489-491. 
history,  489-492. 
prosecutor,  489-491. 
Article  73  (see  Convening  Authority)  : 
division  commander,  492. 
history,  492. 

separate  brigades,  492,  493. 
Article  74,  493,  494  (see  Judge- Advocate)  : 
appointing  power,  493,  494. 
history,  493. 
judge-advocatei  493. 
power  to  appoint,  493,  494. 
Article  75,  494,  495  (see  Composition  of  CourtB- 
martial)  : 
composition  of  courts-martial.  494,  49". 
eligibility  to  membership,  494,  495. 
history,  494. 


INDEX. 


743 


Article  'iti—Contin'ued. 

iiiiniiiuiiii  iiieuihership,  495. 

riutiiber  of  mctiibers,  494,  495. 

(ifdcers  only,  elisible,  494,  495. 

iHionini,  494,  495. 
Articlf  76,  495  (see  Composition  of  Courti-mar- 
tint)  : 

duly  of  eomuiander,  495. 

history,  495. 

officers,  how  obtained,  495. 
Article  7  7,  495,  496  (see  Composition)  : 

comiietency  of  members,  49G. 

history,  4<.K5. 

miliiia,  496. 

repiilar  officers,  496. 
Article  78,  496,  497  (see  Composition): 

command,  496,  497. 

composition  of  courts,  407. 

duty  of  marine  corps,  497. 

history,  497. 

marine  corps,  496,  497. 

president,  power  of,  490. 

when  subject  to  military  law. 
Article  79,  497  (see  Jurisdiction): 

composition  of  general  courts,  497. 

general  courts,  497. 

liistory,  497. 

inferiors  in  ranlj,  497. 

officers,  courts  for  trial  of,  497. 

trial  by  inferiors,  497. 
Article  SO,  498.  499  (see  Summary  Court): 

composition,  498. 

constitution,  498. 

detail,  498,  499. 

field  officer,  498,  499. 

history,  499. 

jurisdiction,  499. 

review,  499. 
Art  icie  SI.  499.  500  (see  Regimental  Court)  : 

appeals  from,  500 

composition,  5(X). 

constitution.  500. 

engineer  corps.  500. 

history,  499,  500. 

jurisdiction,  499,  500. 

ordnance  corps,  500. 

restriction  on,  499,  500. 

signal  corps,  500. 
Article  82,  500-502  (see  Garrison  Courts): 

composition,  501. 

constitution,  501. 

garrison.  501. 

history.  500,  501. 

place.  501.  502. 

where  convened,  501,  502. 
Article  8S,  502-504  (see  SQth,  81st,  and  Sid  Articles 
of  War)  : 

extent  of  jurisdiction,  503. 

history,  502,  503. 

jurisdiction,  503. 

limitation  on  jurisdiction,  503,  504. 

offenses,  503,  504. 

persons,  503,  504. 
Article  84,  504-506  (see  Oaths)  : 


Article  Si— Continued. 
admini.><iration  of  oath,  504. 

form  of  oath,  .')04. 
history,  .504,  505. 
obligation  of  oath,  505,  50C. 
procedure,  505,  506, 
secrecy.  506. 
Article  85,  :m,  507  (see  Oaths)  : 
administration,  506,  507. 
duty  im|)Osed,  507. 
form  of  oalL    "00,  507. 
history,  507. 
obligation  of  oath,  507. 
procedure,  507. 
secrecy.  507. 
Article  Sfi,  .507,  508  (.see  Contempt): 
actual  contempt,  .508. 
constructive  contempt,  508. 
extent  of  jurisdiction,  508. 
history,  507,  508. 
nature  of  offense,  508. 
nature  of  penalty,  508. 
power  of  court,  508. 
procedure,  508. 
summary  character,  508. 
Article  S7,  .508,  .509: 
behavior  of  members,  508. 
calmness,  509. 
decency,  509. 
liistory,  509. 
Arfiile  88,  509,  510  (see  Challenges): 
challenges,  509. 

for  cause,  509. 

to  array,  509. 
extent  of  right,  509. 
history,  509. 

judge-advocate  not  subject  to  challenge,  509. 
objections,  character.of,  510. 
time  of  making,  510. 
waiver  of  right,  510. 
Article  S9,  510,  51 1  (see .drraignmenf)  : 
deliberate  design,  510,  511. 
history,  510. 

effect  of  failure  to  plead,  510. 
obstinacy,  510. 
standing  mute,  510,  511. 
Article  90,  511,  512  (see  Judge  Advocate)  : 
counsel  for  defense,  511,  512. 
history-,  511. 
judge-advocate,  duties  of,  511,  512. 

as  counsel  for  accused,  511. 

as  prosecutor,  511,  512. 
power  to  prosecute,  511,  512. 
prosecutor,  511,  512. 
Article  91,  512-515  (see  Z)eposi7ions) : 
application,  513,  514. 
authentication  of  deposition,  513,  514. 
capital  cases,  512. 
competency  of  deponent,  515. 
depositions,  512-515. 

admissibility,  513-515. 

competency  of  deponent,  515. 

how  taken.  514.  515. 

interrogatories,  514,  515. 


7U 


INDEX. 


Article  9\— Continued. 
procedure,  514,  515. 
history.  51J. 

interrogatories,  514,  5)5. 
scope  of  Article.  513.  514. 
Article  9i.  516,  517  (see  Oaths) : 
afflrrnalions,  516. 
form  of  oath,  516. 
history,  516. 
oath,  form  of,  516. 
reswearing  of  witness,  517. 
witnesses,  516,  517. 
not  resworn.  517. 
Article  93,  517,  518  (see  Continuances): 
cause,  showing  of,  517. 
continuances,  517. 
history,  517. 

postponements.  518,  note, 
procedure,  518. 
reasonable  cause,  517. 
Article  94,  518,  519  (see  Trial): 
application  of  Article,  519. 
defective  proceedings,  519. 
history,  518,  519. 
hours  of  session,  519. 
record,  519. 

sessions  at  other  hours,  519. 
Article  9.5,  520  (see  Trial) : 
history,  520. 
members,  520. 
order  of  voting,  520. 
rank,  520. 
voting,  520. 
Article  96,  530  (see  Sentence) : 
capital  sentence,  520. 
death  sentences,  520. 
findings,  520. 
history,  520. 
majority  required,  520, 
two-thirds  to  concur,  520. 
Article  97  : 
application,  532,  523. 
character  of  offenses,  521-523. 
history,  531. 
military  offenses  not  subject  to,  521,  522. 

prison,  532. 
offenses,  531-523. 
penitentiary,  522,  523. 
prison,  532,  523. 
state  prison,  533. 
Article  98: 
application,  524. 
history,  .524. 

nature  of  prohibition,  524. 
Article  99,  .524-528  (see  Punishments)'. 
application  of  Article,  524-528. 
dismissal  by  executive  order,  534-528. 
effect,  .526. 

procedure,  536.  * 

revocation,  536. 
when  operative,  526,  527. 
dismissal  by  sentence,  524,  525. 
history,  534. 
procedure,  524-526. 


Article  99— Continued. 

trial  of  dismissed  officer,  527,  528. 
Article  100,  538,  ."^39  (see  Punishments)  : 
application,  538,  529. 
cowardice,  529. 
fraud,  539. 
history.  528,  .529. 
publication,  539. 
Article  101,  539-533  (see  PMntsAm«ite)  : 
effect  of  suspension,  530,  533. 
files,  loss  of,  533,  533. 
form  of  sentence,  529,  533. 
history,  529. 
loss  of  rank,  532,  533. 
pay,  .529-533. 
rank,  effect  on,  ,533,  533. 
suspension,  529-533 
effects,  530-533. 
Article  102,  53:W35 : 
application  of  Article,  533-535. 
civil  trial,  534. 
history,  533. 

inadequate  sentence,  534,  535. 
previous  acquittal  or  conviction,  533-535. 
previous  trial,  533-535. 
second  tiial,  533-535. 
Article  103,  5:i5,  536  (see  Statute  of  Limitations) 
absence,  5.35,  536. 
defense,  535. 
evidence,  535. 
fleeing  from  justice,  536. 
history,  535. 
matter  of  defense,  535. 
period  of  limitations,  535. 
plea,  535. 

statute  of  limitations,  535,  536. 
suspension  of  statute,  536. 
when  operative,  .5.35,  .536. 
Article  104,  537-5)3  (see  Reviewing  Authority): 

action  on  proceedings,  538. 
record  of,  540. 

history,  537. 

limitation  on  review,  540. 

power  of  reviewing  authority,  542. 

reasons  for  action,  541. 

record  of  action  in  review,  541. 

reviewing  authority,  537-543. 
limit  of  action  by,  540. 

revision.  .541. 
Article  105  (see  104th  Article  of  War): 

arson,  543. 

assaults,  etc.,  .543. 

commanding  general.  543,  444. 

confirmation  by  President,  543,  544. 

deserters,  .543. 

execution  of  sentence,  543,  544. 

guerillas,  543. 

history,  543,  544. 

mutineers,  543. 

robbery,  543. 

violation  of  laws  of  war,  543. 
Article  106,  ,544,  .545: 

action  of  President,  545. 

approval  of  sentence,  544,  545. 


INDEX. 


745 


Article  JOB    Continued. 

confirmation,  545. 

form  of  action,  545. 

history,  .')44,  545. 
Article  107,  545  (see  Reviexoing  Authority)'. 

brigaue,  separate,  545. 

conflriiiatiou  of  sentence,  545. 

dismissal.  54.'). 

division.  .^4,"i. 

general  commanding  army,  etc.,  545. 

history,  537. 
Article  108,  546.    (See  Reviewing  Authority.) 
Article  109,  546  (see  Revieiving  Authority): 

c'JiiiMiandini;  general  in  the  field,  546. 

history.  .537,  543. 

officer  commanding  for  the  time  being,  546. 
Article  110,  546  (see  Revieiving  Authority): 

brigade  commander,  546. 

field  officer,  546 

history,  .546. 

post  commanders,  546. 
Article  111,  546  (see  Reviewing  Authority): 

application  of  Article,  546. 

procedure,  540. 

sentence,  suspension  of,  546. 
Article  112,  546-55:2  (see  Pardon): 

commutation,  55",!. 

conditional  pardons,  550. 

constructive  pardons,  550. 

cotitiniiing  punishments,  550. 

history.  547,  548. 

mitigntion,  551,  552. 

operation  of  Article,  548,  549. 

pardoning  power,  £48. 

procedure,  551. 

punishment,  effect  on,  550. 

remission,  557. 
Article  113,  553  (see  Record): 

duty  of  judge-advocate,  553. 

history,  553. 

judge-advocate  general,  duty,  553. 
Article  114,  553,  554  (see  Record) : 

accused  entitled  to  copy,  553,  554. 

application  for  copy,  553,  554. 

history,  553. 

when  entitled,  553,  554. 
Article  115  (see  Court  of  Inquiry)  : 

application  for  court,  by  whom  made,  556. 

challenges,  557. 

civilian  not  entitled  to  court,  556. 

contempts.  557. 

history.  555,  556. 

nature  of  inquiry,  556,  557. 
Article  1 16  (see  115f;i  Article  of  VfTar)  : 

composition  of  court,  557. 

history,  555,  556. 

recorder,  557. 
Article  1 17,  557  (see  U5fA  Article  of  War)  : 

form  of  oath,  557. 

history,  555,  556. 

member,  oath  of,  557. 

procedure,  557. 

recorder,  oath  of,  557. 
Article  118  (see  115f^  Article  of  War) : 


Article    IIH     Conti)iued. 

examination  of  witnesses,  557,  668. 

history,  5.55,  556. 

pro<;edure,  5.57,  558. 
Article  1 19,  5.58  (see  Court  of  Inquiry): 

application  of  Article,  558. 

history,  555,  556. 

nature  of  opinion,  558. 

opinion,  558,  559. 

remarks  by  court,  559. 
Article  1'20,  5.59  (see  115fft  Article  of  War)  : 

authentication  of  record,  559. 

history,  556,  557. 
Article  111,  559  (see  llSffc  Article  of  War) : 

admission  of  record  as  evidence,  559. 

capital  cases,  559. 

dismissal  of  officer,  559. 

history,  5.56,  557. 

when  admissible,  559. 
Article  1*22  : 

guards,  559,  560. 

history,  559,  560. 

members.  559,  560. 

quarters,  5.59. 

rule  of  command,  559-561. 

succession  to  command,  559,  660. 
Article  123: 

history,  561. 

regular  officers.  561. 

volunteer  officers,  561. 
Article  124  (see  Militia)  : 

commissions,  dates  of,  561. 

history,  .561. 

rank  of  militia  officers,  561. 
Article  12o  (see  127f;i  Article  of  War)  : 

death  of  officer,  561,  562. 

duty  of  major,  561,  562. 

estate,  561,  562. 

history,  561,  562. 

major,  duty  of,  .561,  562. 

procedure,  561,  562. 

second  in  rank,  duty  of,  561,  562. 
Article  126  (see  127f/i  ^rficfe  of  War): 

company  commander,  duty  of,  562. 

death  of  enlisted  man,  562. 

duty  of  company  commander,  562. 

effects  of  decedent,  562. 

history,  561,  562. 

inventory  of  effects,  562. 

procedure,  562. 
Article  127,  562  (see  125f/i  and  VXth  Articlei  of 
War)  : 

disposition  of  estates  of  decedents,  562. 

history,  561,  562. 

responsibility  for  effects,  562. 
Arundel,  Articles  of  War,  340. 
A8certainmeut  of  facts,  244.    (See  Evidence.) 
Assault  and  batterj  (see  21$(  and    58f/i  Articles 
of  War)  : 

assault,  442. 

battery,  442. 

intent,  in  general,  442. 
to  commit  raf)e,  452,  453. 
to  kill,  442,  443. 


Ti6 


INDEX. 


ABsanlt  and  Battery— Continued. 

menaces,  etc.,  442. 

nature  of  oflfeiise,  442. 

striking,  442. 

wounding,  etc.,  443. 
A8§aalts,  471.    (&e£2\st  Article  of  War.) 
Assisting  the  enemy,  416,  417.    (See  45<h  and  Att\ 

Articles  of  War.) 
Attachments,  248-250  (see  Witnesses) : 

application  of  writ,  248. 

execution,  249. 

judge-advocate,  power  to  issue,  248. 

issue  of  writ,  248,  249. 

limitation  on  writ,  248,  249. 

papers  to  accompany,  249,  250. 

purpose,  248. 

release  on  habeas  corpus,  249,  250. 

return,  249,  250. 

service.  249,  250. 

use  of  force,  249,  250. 
Attorney  and  client,  287, 288  (see  Evidence) : 

clerkSi  287. 

extent  of  privilege,  287. 

interpreters,  287. 

private  knowledge,  287,  288. 
Attorney-General,  opinions,  6. 
Autrefois  acquit,  533.    (See  102d  Article  of  War.) 
Arerraents,  72-75  (see  Charges  and  Specifications): 

documents,  75. 

names,  72. 

persons.  72.  ■ 

place,  73,  74. 

time,  73,  74. 

oral  statements,  75. 
AToidable  accident,  364. 
Ball  and  chain,  187.  (See  Confinement.) 
Battery,  442,  443  (see  Assault  and  Battery) : 

assault,  distinguished  from,  442. 

definition,  442. 

force  used,  442,  443. 

intent,  442,  443. 
Behavior  : 

divine  service,  433,  434. 

in  quarters,  436,  437. 

of  members,  508,  509. 

on  march,  435,  436. 
Being  a  spy,  562-664. 
Best  eTidence,  26.3-271  (see  Evidence): 

documents,  276,  277. 

hearsay,  26«^271. 

primary,  276,  277. 

res  gestae,  270,  271. 

rule,  267. 

secondary,  276,  277. 
Bias,  86,  88,  89.    (See  Challenges.) 
Blank  receipts,  464.    (See  mth  Article  of  War.) 
Boards,  military  : 
examining,  230-236. 
in  desertion,  241. 
retiring,  2.36-238. 
.survey,  2.38-241. 
to  determine  character,  242. 
Boards,  examining,  230-236. 
approval  of  report,  235,  236. 


Boards,  examining— Confmued. 

authentication,  235. 
authority  for.  230. 
challenges,  232. 
composition,  280,  231. 
in  case  of  volunteer  officer,  etc.,  830,  2S1. 
in  general,  230.  231. 
confirmation,  2135,  236. 
examinations,  232-234. 
conduct  of,  232,  233. 
marks,  233. 
oral,  232. 

physical,  232,  233. 
subjects,  232,  233. 
weights,  233. 
findings,  234. 
judgments,  234. 
medical  officers,  232. 
organization,  232. 
procedure,  232-236. 
record,  234,  235,  712-717. 
report,  234,  235. 
review,  235,  236. 
swearing,  232. 

subjects  of  e.xamination,  233,  234. 
Boards  of  survey,  236-241 : 
affidavits,  229,  239. 
approval  of  report,  240. 
authority,  238. 
composition,  238,  239. 
constitution,  239. 
disapproval,  240. 
desertion,  241. 
evidence,  239. 

fixing  of  responsibility,  238,  239. 
no  power  to  condemn,  239,  240. 
power,  239,  240. 
procedure,  239,  240. 
record,  240. 
report,  240,  241. 
approval,  240. 
as  voucher,  241. 
disapproval,  241, 
review,  240,  241. 

witne.sses,  no  power  to  gummon,  239. 
Board  of  survey  in  desertion,  241  (see  Boards  oj 
Survey) : 
constitution,  241. 
procedure,  241. 
purpose,  241,  242. 
report,  241,  242. 
Boards  to  determine  character  : 
constitution,  etc.,  242. 
powers,  242. 
procedure,  242. 
report,  242. 
Body,  flogging,  marking,  etc.,  prohibited,  5S4. 
Branding,  prohibited,  524.    (See  Punishments.) 
Breach  of  arrest,  6.3,  481  (see  65th  Article) : 
actual,  (i3. 

character  of  offense,  481. 
construction,  63. 
penalty,  63. 
technical,  63. 


INDEX. 


U7 


Kreakinr  *nd  entrrin^,  443,  444.    (See  Burglary.) 
Brigade,    separau-,  49L',   493  (see   73d   Article  of 
War)  : 

definition,  492,  493. 

what  constitutes,  492,  493. 
BrItiNh  Articles  of  War  : 

Albemarle's.  340. 

Arundel's,  340. 

Code  of  1766,  340. 

Code  of  1T74,  340. 

Henry  VU.,  340. 

history,  339,  341. 

Janies  II.,  340. 

Northumberland's,  340. 

Richard  11.,  339. 

Ruiierfs.  340. 
Burden  of  proof,  263,  266,  267  : 

amount  necessary  to  convict,  266,  267. 

defendant,  207. 

rule  for  determining,  266. 
Bur^'lary  (see  58th  Article  of  War) : 

breaking,  444. 
actual,  443,  444. 
constructive,  443,  444. 

building,  444. 

definition,  443. 

felony,  443-445. 
execution  of,  443-445. 

intent,  445. 

time.  444. 
CslmneKN,  508,  ."509.    (See  Behavior  of  Members.) 
Camp,  absence  from,  402-404    (see  C3d  Article  of 
War) : 

false  alarms  in,  413,  414. 

followers,  51.  52,  478,  479. 

lying  out  of,  401,  402. 

retainer.s  to,  51,  52,  478,  479. 
Capacity,  rrimioal,  124-128.    (See  Defenses.) 
Capital  crimes,  nheu  triable,  476,  477.    (See  58th 

and  62d  Articles  of  \Var.) 
Capital  sentences,  543,  544  (see  105th  Article  of 
War)  : 

approval  of.  by  President,  543,  544. 

exceptions,  543,  544. 

suspension  of,  546.    (See  lUth  Article  of  War.) 

when  executed  by  commanding  general, 543,544. 
Captured  property,  361-363   (see   9th  Article   of 
War) : 

disposition  of,  362. 

personal  property,  362, 

title  to,  382. 
Causes  of  challenge : 

accuser,  88. 

bias.  89. 

interest,  89,  90. 

material  witness,  88. 

member  of  preTious  tribunal,  88, 

prejudice,  89. 

prosecutor.  88. 

rank  of  member,  89. 

opinion.  89. 
Certificates,  360.  3C5, 366  (see  Absence ;  see,  also, 
'th  and  12^/1  Article*  of  War) : 

absence,  360,  305. 


Cert  iflcales— Con/in  u«d. 

contents.  300,  365,  366. 
false,  305,  300. 
rendition  of,  3tiO,  300. 
Certified  copies  of  docnmenti,  378.     (See    Docu- 

mentary  Evidence.) 
Chai  lenses,  to  duels,  394-398  (see  LnuUing) : 
carrying,  397. 
definition,  396,  397. 
friends,  398. 
how  determined,  398. 
intent,  .'i97. 
nature  of,  398. 
promoters,  394,  398. 
seconds,  .'594,  398. 
what  constitutes,  396,  397. 
Challenges  to  members,  85-90  (see  88(/i  Article 
of  War) : 
accuser,  88. 
bias,  86,  88. 
by  accused,  85-90. 
by  judge-advocate,  87. 
cause  stated,  85,  86. 
causes: 

accuser,  88. 

bias.  89. 

material  witness,  88. 

member  of  previous  court,  88. 

opinion,  89. 

prejudice,  89. 

prosecution.  88. 

rank  of  member,  89. 

record  of,  193. 
classification,  86. 
competency  presumed,  80. 
exercise  of  right,  80. 
grounds  of  objection,  88,  89. 
incompetency,  how  established,  87. 
individual,  85. 

judge-advocate  not  subject  to,  85,  note,  509. 
material  witness,  88. 
nature  of  right,  85. 
number,  85.  86. 
opinion.  89. 

presumptions  as  to  competency,  86. 
procedure,  85-88. 
rank  of  member,  89. 
testimony  in  support,  87,  88. 
to  favor,  86. 
voir  dire,  88. 
waiver,  87. 
when  made,  87. 
withdrawal  of  member,  86. 
Character,  130,  265,  266  (see  Evidence): 
admissibility  of  testimony  to,  130. 
boards  to  determine,  242,  343. 
defense.  130. 
effect,  130. 
nature,  130. 

purpose  of  testimony  as  to,  130. 
rebuttal.  130. 

record,  in  support  of,  130. 
services.  130. 
testimony  to,  %5,  2C6. 


7i8 


INDEX. 


Character— Continued, 
when  important.  265. 
Charges  and  speciflcations,  69-81,  641-643  : 
action  on.  by  connnanding  officer,  T9. 

action  on,  by  convening  authority,  80. 
allegations  in,  72-75. 
as  to  intent,  642,  643. 
as  to  names,  72. 
as  to  persons,  72. 

as  to  place,  73,  74.  642. 
as  to  time,  73,  74,  642. 
alternate  forms,  72. 
amendment  of.  36,  75. 
averments,  72-75. 
by  whom  preferred,  76. 
civil  offenses,  76. 
conditions,  69-75. 

convening  authority,  action  on,  80. 
definition,  69. 
differences  in,  108. 
documents  in,  75. 
essential  conditions,  69. 
evidence  to  be  excluded,  71. 
exclusion  of  evidence,  71. 
forms.  69,  72.    (See  Appendix,  643.) 
general  considerations,  641-643. 
how  drawn,  69,  70. 
joint,  75. 

language  used,  643. 
list  of  witnesses,  75. 
modification  of,  36,  75. 
member,  72. 
objections  to,  109. 
oral  statements,  75. 

originate  with  civilians,  77. 

originate  with  enlisted  men,  77. 

papers  to  accompany,  77-79. 

preferred  by  whom,  76,  77. 

preparation  of,  78. 

previous  convictions,  77-79. 

record  of,  194. 

service  on  accused,  80. 

signature  to,  76. 

specifications,  641-643. 

statement  of  service,  79. 

submission  of,  78,  79. 

surgeon's  report,  79. 

when  preferred,  77. 

withdrawal,  75. 

witnesses,  list  of,  75. 
Charf^es  of  deNertion,  429  : 

definition,  4'.'9. 

how  raised,  429. 

removal  of.  429. 

restoration  to  duty,  429. 

statutory  power  to  remove,  429. 
Chief  of  engineers,  power  to  convene  regimental 

courts,  499,  500. 
Chief  of  ordnance,  power  to  convene  regimental 

courts,  499,  500. 
Chief  siRiial  ofDcer,  power  to  convene  regimental 

courts,  499.  .500. 
Chivalry,  Court  of,  13. 
Citizens,  amenability  to  trial,  46,  51,  53: 


Citizens— Continued, 
injuries  to,  435,  436. 
Civil  claimN,    when   triable,   476.     (See  58t/i  and 

62d  Articles  of  War.) 
Civil  eniployees,  subject  to  discipline  when,  478, 
479: 
when  triable.  478,  479.    (See  63d  Article  of  War.) 
Civil  offenses,  when  triable,  76.    (See  58</i  and  62d 

Articles  of  War.) 
Civil  rights,  enforcement  of,  331,  332. 
Civilians,  charges  may  originate  with,  77. 

injuries  to,  435,  436. 
Claims,  fraudulent,463.  (See  60(/i  Article  of  War.) 
Classification  of  military  law,  4. 
Classification  of  military  tribunals,  16. 
Clemency,   exercise  of,  in  time   of   war,  543,  544 
(see  105f;i  Article  of  War)  : 
recommendations  to,  156,  157. 
Clerk  to  court-martial  (see  Reporter,  40,  41) : 
detail,  41. 
duties,  40,  41. 
enlisted  man  as,  41. 
introduction  of,  85. 
compensation,  41. 
Client,  287,  288.    (See  Attorney  and  Client.) 
Closed  doors,  134,  135.   (See  Sessions.) 
Closed  sessions,  191,  192  : 

record  of  proceedings  in,  191,  192. 
Clothing,  360-364,   372-374    (see    Vth   Article    of 
War)  : 
accountability  for,  360.  363,  364. 
improper  disposition  of,  372-374. 
ownership  of,  374. 
sale  of,  372-374. 
title  to,  372-374. 
wasting,  372. 
Coercion,  127,  128  (see  Compulsion) : 
marital,  128. 
orders,  126. 
Command  : 
rule  of,  559,  560. 
succession  to,  559,  560. 
Commander  of  guard  (see  67th  and  6Sth  Articles  of 
War)  : 
custodian  of  prisoners,  485-487. 
receiving  prisoners,  485,  486. 
release  of  prisoners,  486,  487. 
report  of  prisoners,  486. 
suffering  an  escape,  486,  487. 
Commanding  general  : 
convening  officer,  20. 
decisions  of,  6. 

power  to  execute  capital  sentences,  543,  544. 
limitation  on,  543,  544. 
Commanding  officer  : 
action  on  charges,  79,  80. 
arrests,  power  to  impose,  482. 
authority  over  arrests,  481-483. 
disrespect  to,  316,  317. 
drunkenness  on  duty,  408. 
on  duty,  408. 
power  to  arrest,  481-483. 
Commissioned  officers  : 
absence  without  leave,  403,  404. 


lyjjh'x. 


749 


ComniiNHionetl  otRefm—Cnntinued. 

amenal)ilil_v  iif,  lo  military  law.  46. 

arrest,  01 -6G. 

behavior  in  (jiiarters,  etc.,  436,  437. 

breach  of  arrest,  IXi. 

conduct  prejudicial  to  good  order,  etc.,  473-478. 

conduct  nnhecominn  an  officer  and  fyentleman, 

46H-47-,'. 
confinemetit  of  enlisted  men,  61,  66-68. 
constructive  desertion,  431. 
death  of,  561,  562. 

disiiiis.sal,  by  court-martial.    (See  99</t  Article 
of  War.) 
by    executive  order.      (See    99</i    Article  of 

War.) 
confirmation  of  sentence,  544. 
divine  service,  behavior  at,  433,  434. 
drunk  on  duty,  406-409. 
effects  of  decedents,  562.    (See  iZ~th  Article  of 

War.) 
entertainin};  a  deserter,  431. 
failintj  to  repair  to  place  of  parade,  404,  405. 
false  alarms,  414,  415. 
forcing  a  safeguard,  438,  439. 
inferior  in  rank,  not  triable  by,  497. 
lying  out  of  quarters,  401,  402. 
maintenance  of  order  on  march,  435,  436. 
oaths,  profane,  penalty,  434. 
off  duty.  408. 
on  duty.  408. 

preferring  charges,  76,  77. 
profane  oaths,  434. 
punishments  of,  163-181. 
receiving  prisoners,  48.5,  486. 
releasing  prisoners,  486,  487. 
reparation  for  damage,  43."}-437. 
resignation,  leaving  post  on  tender  of,  431. 
triable  only  by  commissioned  oflBcers,  497. 
violence  to  persons  bringing  provisions,  4.'J7. 
ComniutitlioD,   210,   552  (see  Pardons  and    U2th 
Article  of  War)  : 
by  whom  exercised,  210. 
definition,  310. 
effect.  210. 
how  exercised,  210. 
rest rici  ion  on  power  of,  210. 
ronipany,  Articles  of  War  to  be  read  to,  562. 
Coiupeteucy  of  witnesses,  251-261  : 
definition,  2."1. 
grounds  of  incompetency  : 
crimen  falsi,  253. 
felony,  252,  253. 
idiocy,  258. 
infamy,  252, 2.53. 
infancy,  258,  259. 
insanity,  259. 
interest,  254,  258. 
lunacy,  259. 
treason,  252. 

want  of  religious  belief,  259. 
understanding.  258,  259. 
ohjeciions  to.  122. 
practice  of  U.  S.  Courts,  253. 
presumption  respecting,  260. 


'  Compefmry  of  Yiitnftihm—f^ontinued. 
procedure,  2.'>4.  2titJ.  2til. 
tendency  of  legislation,  252. 
voir  (lire.  L'60,  vjr.I. 
ComiiONitiuii   of    Courts-marl ial    (see  75f/j,    'dth, 
77//1,  78f/i,  ;9f/i,  80//1,  81«f,  and  82d  Articlea 
of  War) : 
deficiency  in  menjbers.  495. 
eligibility  to  membership,  494,  495. 
field  (jfUcer's  court.  49H,  499. 
garrison  courts,  500-502. 
general  courts,  26-41,  494-497. 
inferior  courts,  :j0,  498-502. 
inferiors  in  rank.  28.  497. 
judge-ad  vocute,  33-40,  493,  494. 
marine  corps,  26,  496.  497. 
maximum  membership,  29. 
militia,  27,  495,  496. 
iiieitiliers.  494-.''>02. 
iiienibershii^,  26,  27. 
minimum  membership,  29,  494,  495. 
nuriil)cr  of  members.  27. 
regimental  courts,  499.  .500. 
regular  officers,  495. 
volunteers,  495.  496. 
CompulNioa,  127.  128,  416.    (See  Defenses.) 
C'onrurreiit  Jurisdiction,  43. 

Couditional  parrtriiis,   206,  207,  6.50  (see  Pardons 
and  WZth  Article  of  War)  : 
amnesty,  207. 
conditions  precedent,  207. 

subsequent,  207. 
form,  207. 

how  exercised,  207. 
Conduct,  infamous,  468  (see  6ist  Article  of  War) : 
prejudicial  to  good  order  and  military  discipline, 

472-478. 
scandalous,  468. 

standard  of,  for  officers,  468-470. 
unbecoming  an  officer,  etc.,  468-472. 
Conduct  of  prosecution,  123. 

Conduct   prejudicial  to  good  order  and  military 
discipline,  472-478  (see  62d  Article  of  War)  : 
breaches  of  the  peace,  475. 
capital  crimes.  473. 
character  of  offense,  473. 
charging  of  offenses,  476.  477. 
crimes,  when  chargeable,  473-476. 
disorders,  474. 
drunkenness,  474. 
duty,  standards  of,  472-473. 
findings,  477. 
fraud,  474. 

lesser  kindred  offense,  477. 
military  discipline,  relation  to,  473,  474. 

duty,  standard  of  performance,  473,  474. 
minor  included  offense,  477. 
nature  of  offense,  472—178. 
neglects,  473,  474. 
negligence,  473,  474. 
prejudice  of  good  order,  etc.,  474—175. 
standard  of  performance.  473.  474. 
Conduct    unbecoming  an   officer   and  feotleman, 
408-472  (see  CUt  Article  of  War)  : 


750 


INDEX. 


Condoct  onb««oininfr  ad  offleer  »Bd  ^entlemkn— 

Conti.nxi.ed. 

abusive  language,  469. 

assaults.  471. 

character  of  offense,  468,  469. 

conduct  by  whom  determined,  463. 
need  not  directly  affect  military  service,  470. 

crime,  when  chargeable,  469-472. 

custom  of  service.  469. 

debt.  471. 

divorce,  fraudulent,  471. 

drunkenness,  471,  472. 

duplication  of  pay  accounts,  470. 

evidence,  468. 

false  statements,  etc.,  469. 

fighting,  469,  470. 

fraud.  469-471. 

gambling,  471. 

infamous  conduct,  468. 

intoxication,  468. 

nature  of  offense,  468-470. 

neglect  of  pecuniary  liability,  470. 

pay  accounts,  duplication  of,  470. 

penalty,  471,  472, 

pledge,  violation  of,  470. 

scandalous  conduct,  468. 

scope  of  offense,  468,  469. 

violation  of  pledge,  470. 
Confessions,  268.  269  (see  Evidence) : 

admission,  268,  269. 

corroboration,  269. 

exclusion,  268,  269. 

promises.  268. 

threats,  268. 

voluntary,  268,  269. 
Confinement  (by  sentence),   185-190  (see  Punish- 
ment) : 

ball  and  chain,  1S7. 

effects,  1S5. 

execution  of  sentence,  188-190. 

hard  labor,  187. 

labor  required,  485. 

military  post,  186,  187. 

military  prison,  186,  187. 

penitentiary,  185. 

solitary,  187,  188. 

State  prison,  185. 

status,  185,  485. 

work  required  of  prisoners,  485. 
Conftnement  of  eulisted  men,  61,  66-63  (see  65th 
Article). 

arrest  of  non-commissioned  ofHcers,  66. 

by  whom  impo.sed,  61,  66. 

character  of  restraint,  484. 

commissioned  officers,  power  as  to,  61,  66. 

company  commanders,  powers  of,  61,  66. 

duration  of,  64,  67,  68. 

employment  during,  66,  67. 

execution  of,  66,  484. 

guard,  commander  of,  485-487. 

guard  report,  67. 

how  imposed,  61,  66,  67. 

labor  during,  66,  67,  484. 

officers  charged  with,  67. 


Confinement  of  enlisted  men— Continued, 

■  officer  of  the  day,  duty  of,  66. 

order  for,  how  executed,  66. 

provost  marshal,  48.)-487. 

release  from,  67,  68,  486,  487. 

report  of.  67. 

status,  66,  67,  485. 

termination,  64,  67. 

work  required  during,  66,  67,  485. 

written  charge,  67. 
Confirmation  of  sentence.  546  (see  lOOfA.  Article  of 
War)  : 

limitation  of  power,  .546. 
Congress,    contemptuous  or  disrespectful  words 

against,  375,  .376. 
Conscription,  51. 
Conscripts,  51. 
Conspiracy   to  defrand,  463.     (See  60f/i  .4r<iclc  o/ 

IVar.) 
Constable  of  England,  13  : 

authority,  13. 

court  of.  13. 

duties,  13. 

judicial  powers,  13. 
Constable's  Court,  13  : 

history,  13. 

jurisdiction,  13. 
Constitution  of  Conrts-martial,  17-25,  490-502  (see 
72(i  and  73rf  Articles  of  War)  : 

accuser  and  prosecutor,  17-25,  491,  492. 

army,  commander  of,  17. 

brigades,  492,  493. 

delegation  of  authority,  19. 

divisions.  492,  493. 

field  officer's  courts,  23,  498,  499. 

garrison  courts,  24,  500,  502. 

general  courts,  17-22,  489^94. 

inferior  courts,  22-25,  498-502. 

marine  corps.  496,  497. 

militia,  495,  496. 

peace,  time  of,  490-492. 

power  to  convene,  17-25. 

President  as  convening  officer,  17. 

regimental  courts,  499,  500. 

regular  officers,  495. 

separate  brigades,  21. 

summary  courts,  24. 

volunteers,  495,  496. 

war,  time  of,  490-492. 
Constructive  contempt,  508.    (See  86th  Article  of 

War.) 
Constractire  desertion,  431  (see  Desertion) : 

nature  of  offense,  431. 

statutoiy  character,  431. 
Constrnctive  pardons,  207  (see  Pardon*)  : 

definition.  207. 

effects,  207. 

how  exerci.sed,  207. 

pleading,  207. 
Contempt  of   Court,   139,   140,  507,  508  (see  96th 
Article  of  War)  : 

actual,  1.39,  508. 

constructive,  139,  508. 

direct.  1-39. 


INDEX. 


751 


CoBt«mpt  of  I'oart— Continued. 

jurisdiction,  508. 
power  to  punish,  Vi'i. 
procedure,  140,  508. 
punishment.  140. 
record  of  proceedlDKS.  140. 
witnes.s,  falliin'  to  answer,  508. 
CoDtemptuouii  norJs.  iV>,  376.    (See  President.) 
Cominuanres,  90,  '.U  (see  93ti  Article  of  War.) 
application,  90. 
cause.  90. 
evidence,  90. 
grounds  for.  90, 91. 
procedure,  90.  91. 
reasonable  cause,  90,  91. 
restriction  on.  90. 
Contract  of  KDlistment.  55  : 
character,  5.'). 
discharge,  56. 
oath.  56. 
termination,  56. 
CoDTenini;  .luthority,  17-25,  489-494  (see  Constitu- 
tion i>f  Courts-martial)  : 
accuser,  17,  491,  49'i. 
action  on  charges,  79.  80. 
attribute  of  command,  19. 
commander  as  prosecutor,  17, 18. 
commanding  general  a.s,  19. 
delegation  forbidden.  19. 
department  commander,  17. 
division  commander,  19,  492,  493. 
general  courts,  17-22. 
inferior  courts,  22-25. 
in  time  of  peace,  17-19. 
in  time  of  war,  20-25. 
judge-advocates,  492,  494. 
nature,  19. 
President,  19. 

separate  brigades.  21,  432,  493. 
superintendent  of  military  academy,  22. 
ConTenioi;  Order  : 
contents.  691,  70.3. 
reading  of.  85. 
CoaTirtion,  previous,  plea  in  bar,  100,  101. 
CoQiicts,  military,  .")M. 
Copies,  277.  278.  28.3,  284  (see  Documents)  : 
as  evidence.  277-283. 
certified,  2,  278. 
examined,  278. 
exemplifications,  277,  278. 
wh-'n  receivable,  275-278,  283,  284. 
Corps  of  Kuzineers,  regimental  courts  in,  499,  5(X). 

(See  SUt  Article  of  War.) 
Corresponding  with   enemy,  417,   418.    (See    45//t 

and  i6tli  Artirl^<!  .-/  War.) 
Coonxcl,  3t^40  (.see  Judge- Advocate) : 
access  to.  40. 
assistance  of,  3S.  40. 
duty  of.  36,  38,  39. 
inferior  courts.  40. 
judge-advocate  as,  36. 
member  as,  40. 
reatriction  on,  39,  40. 
right  to,  38. 


CouDsel  —  Continued. 
selection  of,  39. 
to  assi.st  judge-advocate,  M. 
CounterHigu  (see  44//i  Article  of  War)  : 
ap|ilicati>i(i  of,  416,  417. 
making  known,  416,  417. 
parole,  417. 
purpose,  417. 

to  whom  imparted,  416,  417. 
use,  417. 

watchword,  416,  417. 
Courts  : 

decisions  as  evidence,  281. 
Courts-martial  : 
authority,  15. 
calling  witnesses,  130. 
classification,  16. 
composition,  25-41. 
constitution,  17-25. 
closed  sessions,  134,  1.35. 
control  over  prosecution,  123. 
created,  how,  16. 
duties  in  respect  to  record,  191. 
executive  agencies,  15. 
functions,  15. 
history.  13. 
hours  of  session,  133. 
independence.  156. 
origin,  13. 

recalling  witnesses,  130. 
records  of,  191-198. 
records  as  evidence,  282. 
responsibility  for  record,  130. 
revision  proceedings,  158,  166. 
sessions,  133. 
Courts  of  honor,  16.    (See  Courts-martial.) 
Courts  of  inquiry,  220-224  (see  URth-Vilst  Article! 
of  War)  : 
application  for,  221. 
challenges,  221. 
composition,  220,  221,  557. 
conduct  of  inquiry,  222. 
constitution,  220,  221,  555,  556. 
evidence,  221,  222. 
function,  220. 
history.  5.55,  556. 
oaths,  557. 
object,  220. 

opinion.  222,  223.  558,  559. 
procedure,  221,  557-559. 
purpose,  220. 
record,  222. 

as  evidence,  227. 
recorder.  221,  .557. 
witnesses,  5.57. 
Conardlre.  415,  416  (see  42d  Article  of  War) : 
dismissal  for,  528,  529. 
publication  of  sentence.  528,  529. 
Credibility  of  witnesses.  290-292: 
character.  291,  292. 
conflicting  testimony,  291. 
cumulative  testimony,  292,  2M. 
definition,  290. 
determined  by  court,  290. 


'52 


ISIJEX. 


Credibilitj  of  Witnesses— Con/tn«ed. 

impeaching  credit,  291. 
inconsistent  statements,  29'2. 
number  of  witnesses,  292,  293. 
reputation.  291,  293. 
Crime  : 
charge  of,  under  Article  61,  469-472. 
charge  of,  under  Article  62,  472-476. 
Crimen  falsi,  253,  254  (see  Evidence) : 
definition.  253,  254. 
procedure,  254. 

removal  of  disqualification,  254. 
Criminal  capacity,  124-128. 
Criminating  questions,  288  : 
by  whom  determined,  288. 
court,  power  of,  288. 
objection  to,  288. 
privilege  of  witness,  288. 
profert  of  the  person,  288. 
Cross-interrogatories,  296.    (See Depositions.) 
Caronlative  eridence,  292,  293. 
Customs  of  service,  10  : 
authority,  10. 

conditions  essential  to  validity,  10-12. 
extinguishment,  11. 
sanction,  10. 
source,  10. 
usages,  10,  12. 
validity.  10. 
Custom  of  war,  10.    (See  Customs  of  Service.) 
Damage,  to  private  property,  435-4.37  : 
to  public  property.  363--165,  369-372  (seelOth  and 

16th  Articles  of  War)  : 
reparation  for,  435,  436. 
stoppages,  369-3' 2. 
Death,  punishment  of,  165,  166  (see  %th  and  105(7i 
Articles  of  War)  : 
approval  of  sentence,  543,  544. 
execution,  165,  166. 
limitation,  165. 
sentences,  520. 
when  Impossible,  1G5. 
Debts,  private,  neglect  of,  471.    (See  61s<  Article 

of  War.) 
Decedents,  estates  of,  561,  562  (see  125th,  i26th,  and 
\2~th  Articles  of  War) : 
inventory  of  effects,  562. 
Decisions  of  Courts,  authority  of,  6 : 
evidence  of,  281. 

Decisions    of     heads     of    executive    depart- 
ments, 6. 
President,  6. 
Declarations  against  interest,  269. 
Defense,  124-1.33  (.see  Prosecution)  : 
accused  as  witness,  132. 
address,  129. 
character  in,  130. 
conduct  of,  129. 
self-,  448,  449  (see  Homicide). 
Defenses  (see  Defense) : 
alibi,  129. 

capacity  to  commit  crime,  124-126. 
tests,  124-126. 
complete,  124-126. 


Defenses  —Continued. 

compulsion,  127,  128. 

criminal  capacity,  124. 

drunkenness,  126,  127. 

duress,  127,  128. 

force,  127, 128. 

idiocy,  125. 

ignorance  of  fact,  128. 

ignorance  of  law,  382. 

Infancy,  125. 

insanity,  125. 

limitations,  statute  of,  111-113. 

lunacy,  125. 

marital  coercion,  128. 

military  orders,  128. 

mistake  of  fact,  128. 

obedience  to  orders,  128. 

orders  in  defense,  128. 

statute  of  limitations,  111-113. 

sufficient.  124. 
valid,  124. 
Degrading  questions,  286,  289,  290.  (See  Evidence.) 
Deliberations  : 

behavior  of  members,  138. 

closed  sessions,  135. 

control  of  President,  138. 
Demurrers,  113,  114  (see  Pleas)  ; 

answering  over,  114. 

basis,  113. 

effects,  113. 

grounds  of,  113. 

how  decided,  113. 

issue  of  law,  113,  114. 

judgment,  114. 

nature,  113. 

not  favored,  113,  114. 

office  of,  113. 

procedure  under,  113,  114. 

substance,  matter  of,  113, 114. 

waiver,  114. 
Department  commauder  : 

action  on  charges,  80. 

convening  authority,  17-22,  489-494. 

reviewing  authority,  199-210. 
Departures,  271,  272.     (See  Evidence.) 
Deponents,  294-298  (see  Depositions) : 

competency  of,  297. 

credibility,  297. 
Depositions,    attestation,    294-298,    512-515     (Bee 
91s<  Article  of  War)  : 

authority  for,  295. 

capital  cases,  295,  296. 

competency  of  deponent,  297,  298 

court,  power  over,  290. 

deponent,  296-298. 

dismissal  of  officer,  295,  296. 

distinguished  from  affidavits,  294. 

evidential  value,  297. 

execution,  290,  297. 

foreign  countries,  298. 

interrogatories,  290. 

limitation  in  use  of,  294,  295. 

objections  to,  297.  * 

procedure,  295,  290. 


INDEX. 


753 


DepoNitioni),  attestation— Confjuued. 

territorial  restriction,  ^95,  296. 
DeHerters,   4:.'3-4iS    (see  Desertion   and  Alth-ZUt 
Article  of  War)  : 
apprehensioD  of,  423-428. 
approval  of  death  sentences,  543. 
arrest  of,  4J3-428. 
by  whom  made,  -123-428. 
arrest  of,  legality  of,  423-428. 
board  of  survey  on,  241. 
delivery,  425. 

deposits,  forfeiture  of,  427. 
enlistment  of.  346. 
forfeitures  of,  427-129. 
hmitation  on  prosecution  of,  111-113. 
making  good  time  lost,  427-429. 
pardon  of,  effects,  429. 
rewards.  423-428. 

when  payable,  423-123. 
time  lost,  427-429. 
Desertion,  418,  429  (see  47^/i  Article  of  War) : 
absence,  character  of,  420,  421. 
advising,  4.'52,  433. 
board  of  survey  in,  241. 
by  whom  committed,  420. 
charges  of,  429. 
constructive,  431. 
elements  of  offense,  420,  421. 
escape.  422. 
intent,  420,  423. 

limitation  on  prosecution  for,  111-113. 
nature  of  offense,  420. 
penalty,  419. 
persuading,  432,  433. 
statute  of  limitations  in,  111-113. 
statutory  consequences,  346,  427-129. 
forfeiture  of  allowances,  427-429. 
forfeiture  of  citizenship,  427-429. 
forfeiture  of  deposits,  427. 
forfeiture  of  pay,  427,  429. 
incapacity  to  enlist,  346. 
incapacity  to  hold  office,  427-429. 
making  good  time  lost,  427-429. 
Destruction  of  record,  197. 
Dilatory  pleas,  107. 
Direct  examination,  285,    286.      (See    Trial    and 

Evidence.) 
Discretionary  sentences.  149. 
Discharge,  352-358  ^see  4th  Article  of  War)  : 
certificate,  352-355. 
dishonorable,  356,  357. 
effect  of,  353-355. 
evidence  of,  352,  355. 
executive  order,  355,  356. 
expiration  of  service,  352-355. 
forms  of,  353-358. 
honorable,  353-355. 
purchase  of,  358. 

rescinding  of  enlistment  contract,  354. 
without  honor.  357,  358. 
Discipline,  conduct  prejudicial  to,  472-478  (see 
62<i  Article  of  War)  : 
relation  of  military  law  to,  1. 
standards  of,  473,  474. 


Discipline— Continued. 

when  applicable  to  civilians,  1. 
DiHhonurable     discharge,    183-185,    356,    357   (geo 
I'unmlnneuts)  : 

effects,  184. 

execution,  184. 

not  revocable,  134. 
Dismissal    of   offlcers,   166,  167,  524-528  (see  73th 
Article  of  War) : 

applicable  to  officers  only,  166. 

by  executive  order,  524-528. 

cowardice,  etc.,  166. 

disqualification  for  office,  167. 

effects,  166,  526. 

execution  of,  524. 

fraud,  166. 

limitation  on  power,  524. 

procedure,  525. 

publication  of,  166. 

sentences  of,  524. 

statutory  consequences,  166. 
Disobedience  of  orders,  10,  382-387  (see  Orders): 

character,  383,  384. 

definition,  382,  383. 

lawful  orders,  380,  381. 

negative,  .384. 

orders,  378-382. 

penalty,  378. 

positive,  384. 

presumption,  385. 

specific  character,  384-385. 

superior  officer,  383-385. 
Disorders,  suppression  of,  393,  394,  474  (see  24f^ 
Article  of  War)  : 

when  triable,  472-476.    (See  62d  Article  of  War.) 
Disposition  of  records  (see  Record)  : 

general  courts,  197. 

inferior  courts,  197. 
Disrespect  to  commanding  oflScer,  376,  377. 

Congress,  375,  370. 

nature  of  offense,  376,  377. 

President,  375,  376. 

Vice-President,  375.  376. 
Dirine  service,  433,  434  (see  52d  Article  of  War)  : 

attending,  433,  434. 

behavior  at,  434. 

disturbance  of,  434. 

irreverence  at,  434. 

scope  of  offense,  434. 
DiTision  commander  : 

convening  authority,  20-22. 

reviewing  authority,  199-210. 
Divorce    proceedings,   fraudulent,  471.    (See  61if 

Ariicb-  ../  War.) 
Docuineiilury  evidence,  275-285.     (See  £iridenc«.) 
Documents,  275-265. 

allegation  of,  in  specifications,  75. 

alterations,  284,  285. 

authentication,  275. 

certified  copies,  273. 

copies,  277-28;3. 

court-martial  records,  232. 

definition.  27C. 

decisions  of  courts,  281. 


'54 


INDEX. 


Dofuments— Continued, 
evidential  value,  276. 
examined  copies,  278. 
executive  department,  records  of,  278,  879. 
exemplifications,  277,  278. 
journals  of  Congress,  280,  281. 
judicial  records,  280,  281. 
judgments  of  courts,  281. 
military  orders,  282. 
orders,  282,  283. 
private  documents,  283-285. 
proof,  275-285. 
public  documents,  275-283. 
public  records,  275,  278-281. 
records  : 
courts-martial.  282. 
courts  of  inquiry,  559. 
public,  2V5,  278-283. 
reports,  282,  283. 
secondary  evidence,  276,  277. 
specifications  containing,  75. 
State  laws,  etc.,  281. 
statutes,  272-274,  280,  281. 
Double  amenability,  43. 

Drunkenness,  12G,  127,  406-409,  471^74  (see  Z%th, 
Wth  and  61s<  Articles  of  War) : 
aggravates  crime,  126. 
appearance  at  formation,  408,  409. 
as  a  defense,  126,  127. 
as  an  oflfense  against  discipline,  408,  409,  471, 

472-474. 
at  formations,  prior  to  duty,  408,  409. 
cause  of,  126,  127. 
defense  of,  126,  127. 
efiCect  of,  on  intent,  126,  127. 
intoxicant,  126,  127. 
off  duty,  406-409. 
on  duty,  406-409. 
penalty,  409. 

triable  imder  61st  and  62d  Articles  of  War,  471- 
474. 
DronkenneHg  on  doty,  406-409  (see  38th  Article  of 
War) : 
appearance  for  duty  under  influence  of  liquor, 

408,  409. 
become  drunk,  408,  409. 
corporal  punishment,  407,  409. 
drunkenness  off  duty,  408,  409. 
duty,  interpretation  of  term,  407-409. 
found  drunk,  407,  409. 
guard,  party,  etc.,  407,  408. 
intoxicant,  408. 
nature  of  offense,  407, 409. 
off  duty,  408. 
on  duty,  408. 
commanding  oflQcer,  408. 
commissioned  officer,  408. 
enlisted  men,  408. 
medical  officer,  408. 
penalty,  4C9. 
under  arms,  407. 
DDellinR,   394-398  (see  25th,  2«<fc,  and  27tA  Arti- 
cles of  War) : 
arrest  of  challengers,  398. 


Duelling  — Con  tiuued. 

challenges,  394,  396,  397. 

chargeable  under  62d  Article,  395. 

duty  of  commanding  officers,  398. 

permitting  duels,  etc.,  397,  398 

prevention  of,  396-398. 

promoters  of,  394-398. 

provoking  speeches,  etc.,  394-396. 

reproachful  speeches,  etc.,  394^96. 

seconds,  394-398. 
Duels.    (See  Duelling,  394-398). 
Duress,  127,  128.    (See  Defenses.) 
Duty,    374,    375    (see    18^;i  and  62d   Article!    of 
War)  : 

drunkenness  on,  126,  127,  406-409. 

hiring  performance  of,  406. 

neglects  of,  472-478.    (See  62d  Article  of  War.) 

of  sentinels,  410-412. 

off  duty,  interpretation  of  term,  408. 

on  duty,  interpretation  of  term,  406. 

performance  of,  473,  474. 

standards  of  performance  of,  473,  474. 
Dying  declarations,  269,  270  : 

admission  of,  269,  270. 

definition,  269. 

relevancy,  269. 
Earl  marshal.    (See  Marshal,  14.) 
Embezzlement,   450-152  (see  Ijirceny,  and   COth 
Article  of  War)  : 

breach  of  faith  involved,  450. 

conversion,  450. 

definition,  450. 

intent,  450. 

felony,  450. 

fiduciary  relation,  450. 

fraudulent  conversion,  450. 

ownership,  450. 

statutory  embezzlements,  451,  452. 
Employees,  civil,  when  subject  to  discipline,  478, 

479.    (See  63d  Article  of  War.) 
Employees  of  courts-martial,  40,  41  : 

appointment,  40,  41. 

clerk,  41. 

compensation,  40,  41. 

interpreter,  41. 

oaths,  41. 

reporter,  40,  41. 

stenographer,  40,  41. 
Employment  of  military  force,  323-326  : 

civil-rights  law,  331,  332. 

enforcement  of  laws,  324-335. 

execution  of  laws,  323-325. 

how  used,  337,  338. 

Indian  reservations,  328-331. 

insurrection,  326-328. 

neutrality,  333-335. 

peonage  in  New  Mexico,  332,  333. 

posse  comitatus,  335,  336. 

President,  powers  of,  323-336. 
commander-in-chief,  323. 
execution  of  laws,  32?,  324. 

proclamation  to  insurgents,  326,  327. 

purposes,  335-33S. 

removal  of  intruders,  328-331. 


JNUEX. 


i  oo 


Emplojnient  of  mflitar)  Tortt— Continued. 

restriftioiis  <>u.  :i;j5,  .'J'i6, 
purpose  of,  3ao. 

suppression  of  inmirrectioii,  3'v'6— 328. 

trespassers,  328-331. 

unlawful  assi'iiildaKes.  326. 

war  jiowers  of  the  United  Stat*S.  323. 
Kiienjy,  53.  417.  418  (see  ibth  and  46</i  Articles  of 
War): 

assistinn,  .^3,  417.  418. 

captures  from.  dlRposition.  361,  362. 

correspond iuf;  with,  417,  418. 

giving  intelligence  to,  53,  417,  418. 

harboring,  417.  418. 

holding  oorrespondeuoe  with,  53,  417,  418. 

how  determined,  41H. 

interpretation  of  term,  418. 

property  of,  captured.  3G1.  362. 

relieving.  417,  41^. 
Enforrenient  of  laws,  324.  335. 
Kuglish  articles.     (See  Articles  of  War,  339-341.) 
Kii listed  men  : 

absence  without  leave,  402-401. 

auie. lability  to  military  law,  54,  55. 

behavior  in  quarters,  436,  437. 
on  the  march.  436.  437. 

conduct  prejudicial    to    good  order,  etc.,  468- 
472. 

confinement  of.  60-68,  484-487. 

counsel  for,  30-40. 

death  of,  562. 

discharge  of,  3,52-358. 

disorder,  repression  of,  394. 

divine  service,  attendance  upon,  433,434. 
behavior  during,  433,  434. 

drunk  on  duty,  400-409. 

effects  at  decease,  562. 

enlistment  of,  346-352. 

estates  of  decedents,  562. 

failing  to  repair  to  place  of  parade,  404,  405. 

forcing  a  safeguard,  438.  439. 

found  one  mile  from  camp,  etc.,  405. 

furloughs  to,  365. 

lying  out  of  quarters,  401,  403. 

oaths,  profane,  penalty,  434. 

off  duty,  408. 

on  duty,  408. 

punishments  of,  182-190. 

redress  of  wron-rs.  225-228,  400,  401. 

release  from  confinement.  487. 

violence  to  persons  bringing  provisions,  437. 
KnliHtmeutR,  55,  56,  348-3.il  (see  2d  and  3d  Articles 
of  War): 

contractual  character  of,  55,  349. 

discharge  from,  56. 

evidence  of,  349,  :i50. 

fraudulent,  351,  352. 

how  ma.le,  55,  56,  348-350. 

oath,  50.  344. 

prohibited,  346-347. 

status,  how  created,  55,  56. 

termination,  50. 

voluntary  act,  55. 

what  constitutes,  55. 


Kntertsiitinc  a  dwf rter,  -OJ.    (See  'Mh  Article  o) 

\V(U  .) 
KraiiureH.   I'JO. 
KutateH  of  decfdt-ntii.  561.  .')62.    (See   X'&th,   126»A, 

and  127//t  Articles  of  War.) 
Kvideuce  : 

admissions  against  Interest,  269-270. 

alterations,  284-285. 

ascertainment  of  facts,  244. 

attorney  and  client.  287,  388. 

best  evidence,  263,  268  271. 

burden  of  ijroof,  -X'-i,  206,  267. 

character,  265.  260. 

competency  of  witnesses,  251,  S61-2C5. 

confessions,  268,  269. 

court  of  inquiry,  record  as.  559. 

credibility  of  witnesses,  290-292. 

ciiinulaiive  evidence,  292,  293. 

declarations,  269. 

definition,  244. 

departures,  271,  272. 

depositions,  294-298. 

documentary  evidence,  263,  275-285. 

dying  declarations,  269,  270. 

erasures.  281,  285. 

how  obtained,  245. 

judicial  notice,  272.  275. 

leading  questions,  286. 

number  of  witnesses,  292,  2fl3. 

opinii>ns,  261,  262. 

oral  testimony,  263. 

presumptions,  298.  299. 

primary  and  secondary,  276,  277. 

record  of  court  of  inquiry,  559. 

refreshing  memory,  298. 

relevancy,  203-266. 

res  gesfas,  270.  271. 

rules,  2.50,  262-299. 

secondary,  276,  277. 

substance  of  issue.  271 ,  272. 

witnesses.  245-250,  251,  261. 
competency,  251-261. 
credibility,  290-292. 
examination  of.  285-290. 

written  testimony.  263.  275-285. 
Kxaiuluat  Ion  of  witnesses,  285-293  : 

admissions  without  proof,  292. 

character,  291,  292. 

competency,  251-201. 

conflicting  testimony.  291. 

credibility,  290  292. 

criminating  questions,  288. 

cross-examination,  285,  286. 

degrading  questions.  280,  289. 

direct  examination.  285,  286. 

leading  questions,  286. 

method  of,  120. 

number  of  witnesses.  202,  293. 

oath,  285. 

objections  to  competency,  285. 

order  of  examination,  285. 

privileged  questions.  287-290. 

attorney  and  client.  287.  388. 

criminating  questions,  288. 


756 


INDEX. 


Examination  of  witnesses— Corifinucd. 

degrading  questions,  386,  289,  390. 

husband  and  wife.  2SS. 

redirect  examination,  335. 

refreshing  memory,  393. 

reputation,  391,  393. 

state  secrets,  387. 
Kxaminin?  boards,  230-236.    (See  Boards  of  Ex- 

ainiiiation.) 
Exceptions,  1-13.    (See  Finding.) 
Execution  of  sentence,  160-163  (see  Pitnis/iments): 

approval.  160. 

confirmation,  160. 

cumulative  sentences,  161. 

order  of.  160,  161. 

publication,  160.  161. 

reviewing  authority,  160,  162. 
Exclusion  of  persons,  135.    (See  Sessions.) 
Executive  departments,  378.  379  : 

records  of,  as  evidence,  378,  279. 
Excusable  homicide,  447,  449  (see  Homicide) : 

accident,  448. 

misadventure.  448. 
Expert  testimony,  261,  262. 
Experts,  361-362  (see  Opinions): 

admissibility,  361,  363. 

capacity,  361,  263. 

hypothetical  question.  262. 

procedui-e,  263. 

presumptions  as  to,  261,  262. 
Expiration  of  service  : 

discharge, 

no  bar  to  trial.  468.    (See  60th  Article  of  War.) 
Extortion,  374,  375.     (See  ISth  Article  of  War.) 
Failini;  to  repair  to  place  of  parade,  etc.,  404,405. 
Fairs,  disturbing,  435,  436. 
False  additions.    (See  Pleas,  107,  108.) 
False  alarms.  414,  415.    (See  41.sf  Article  of  War.) 
False  certificates,  360.    (See  7th  and  12th  Articles 

of  War.) 
False  musters,  367-369  (see  Article  14) : 

evidence.  367. 

how  committed,  367-369. 
False  returns.  360,  361. 
False  statements,  when  chargeable,  469.  (See61sf 

Arlirlc  of  War.) 
False  swearing.  4.56.     (See  Perjury.) 
Felonious  homicide,  447.    {See  Murder  and  Man- 

slau()hter.) 
Felony,  as  a  disqualification,  252,  253.    (See  Evi- 
dence.) 
Field    officer"!    conrt,   25,   217,  498,    499-504   (see 
f^)lli.  Article  of  War) : 

composition,  35,  317,  498. 

constitution,  25,  217,  498. 

convening  authority,  23,  217,  493. 

discontinued,  25. 

jurisdiction,  25,  211-218,  503-604. 

procedure,  218. 

record,  218. 

review,  218,  219, 
Fighting,  when  chargeable,  469,  470.    (See  61s< 

Article  of  War.) 
Files,  losa  of,  532, 533.    (See  101«(  Article  of  War.) 


Finding,  140-148  : 

acquittal,  145. 

basis,  140-143. 

character,  influence  of,  on,  130. 

doubt,  141. 

exceptions,  141. 

included  offense,  144,  145. 

kindred  oflense,  144,  145. 

lesser  included  otTeuse,  144,  145. 

minor  offense,  144,  145. 

order  of  voting,  141. 

protests,  145. 

reasonable  doubt,  141. 

record  of,  195. 

remarks  on,  145,  146. 

revocation,  158. 

substitutions,  141,  142. 

tie  vote,  143,  146. 

under  61st  and  62d  Articles  of  War,  4«6-478. 

voting,  141. 
Fines.  175,  176  (see  Forfeitures) : 

accrue  to  United  States,  176. 

distinguished  from  forfeitures,  175,  176. 

distinguished  from  stoppages,  175,  176. 

execution,  176. 

imprisonment  in  connection  with,  176. 
Fish-ponds,  waste  or  spoil  in,  436,  437. 
Fleeing  from  justice,  536. 

Flogging,  prohibited,  524.    (See  Punishment.) 
Force,  employment  of,  323-338,  392,  393  : 

suppression  of  mutiny,  392,  393. 
amount  of,  393,  393. 
duty  to  use,  393. 
how  used,  393,  393. 
when  justifiable,  393,  393. 
Forcing  a  safeguard,  438,  439  (see  S7th  Article  of 
War)  : 

penalty,  438,  439. 

scope  of  offense,  438,  439. 

when  committed,  438,  439. 
Forfeitures  : 

absence  without  leave,  403,  404. 

by  operation  of  law,  177. 
sentence,  177. 

distinguished  from  stoppages,  178. 

implication,  177. 

interpretation,  178. 

operation  of  law,  150-153,  177. 

pay,  177,  178. 

sentence,  177,  178. 
Forgery,    453,     454,    463    (see    60th    Artidt    of 
War) : 

definition,  453. 

instrument,  453. 

intent,  4.53. 

scope  of  offense,  453. 

signature,  453,  464. 

when  triable,  454. 
Forms  of  charges,  69-72,  641-682  (see  Charges  and 
Appendix) : 

pleas,  683-686. 

records,  G90-716. 
Frauds,  chargeable  under  Article  62  : 

dismissal  for,  publication  of  sentence,  538,  529. 


INDEX. 


I  Oi 


Frandalent    cUimi,  463.     (See   fMh  Article   of 

War.) 
FrandDlenI  enliNtmrDts,  351,  352  (see  3d  and  50(A 
Articles  of  War) : 

disposition  of,  351. 

effects.  351. 

evidence,  432. 

fraud,  XI. 

history.  432. 

nnisrepresentation,  351,  %S. 

nature  of  offense,  432. 

voidable,  351.  352. 
Frays,  suppression  of,  398,  394.    (See  iAth  Article 

of  War.) 
ForloughN,  3G5  (see  Wth  Article  of  War)  : 

by  whom  granted,  365. 

lenKth,  .'JCr). 

to  whom  granted,  365. 
(iardens,  waste  or  spoil  in,  436.  437. 
Garrison,  Articles  of  War  to  be  read  to  every, 
5C2. 

false  alarms  in,  413,  414. 

lying  out  of,  401,  402. 
(iarriaon  Court,  23,  21C,  500-502  (see  82d  Article  of 
War) : 

composition,  24,  216,  500. 

constitution,  24,  216,  500-502. 

convening  authority,  24,  216,  5(X). 

jurisdiction,  211,  217,  502,  503. 

procedure,  217. 

record,  217. 

review,  217. 
General  oiBcers  : 

convening  authority  of,  489-494.    (See  78d  and 
73d  Articles  of  War.) 

destruction  of  property  by  order  of,  436,  437. 

proceedings  respecting,  546. 

sentences  affecting,  546. 
General  Courts-murtiat  : 

appeals  from  regimental  courts,  227-888. 

composition,  26-30. 

constitution,  7-22. 

judgment,  227-228. 

jurisdiction,  227,  228. 

parties,  227. 

procedure,  227,  828. 

record,  191-198. 

review,  199-210. 

summary  jurisdiction,  228. 
General  isNue,  114-117  (see  Plecu): 

arraigimient,  114. 

definition,  114. 

form  of  arraignment,  114. 

effect  of  plea  of  guilty,  114,  116. 

how  pleaded,  114,  115. 

introduction  of  testimony,  115,  116. 

not  guilty,  effect  of  plea,  114,  115. 

procedure,  114,  115. 

statements  inconsistent  with  plea,  115. 
withdrawal  of  plea,  115. 
General  orders,  379  (see  Orders)  : 

as  evidence.  282,  283. 
Gentleman,  conduct  unbecoming  a,  46&-478.    (See 
61«f  Article  of  War.) 


Giving   intelHftence  U>  enemy,  53,  417,  418.    (Se« 

40</i  Article  of  War.) 
Good  order,  maintenance  of,  473,  474.     (See  62d 

Article  of  Ifar.) 
Guard  : 
commander  of,  receiving  priHoners,  485,  486. 

releasing  prisoners,  486,  487. 
drunkenness  on,  410-412. 
duty.  410-412. 
leaving.  413.  414. 
quitting,  413,  414. 
receiving  prisoners,  485,  486. 
releasing  prisoners,  486,  487. 
report  of  prisoners,  486. 
Guard  dnty,  410  412  (see  Sentinels)  : 
execution  of  orders.  410-412. 
force,  use  of,  411,  412. 
importance  of,  410-412. 
quitting  post,  409-412. 
respect  for  sentinels.  410-412. 
sentinels.  409-412. 
sleeping  on  post,  409-418. 
Guards : 
command  of,  559.  560. 
rank  of  commander.  559,  560. 
Grades  of  military  rank,  560. 
Graiii-flelds,  waste  or  spoil  in,  436,  437. 
Guerrilla  marauders  : 
death    sentence,  approval  of,  643.    (See  105f/k 
Article  of  Wtir.) 
Gnstavns  ildolphns,  code  of,  340. 
influence  of,  on  American  Articles,  340. 
British  Articles.  340. 
Habeas  Corpus,  314-322. 
ad  testificaiidum,  314. 
character  of  restraint,  315,  316. 

writ.  315. 
concurrent  jurisdiction,  321.  note, 
conflict  of  jurisdiction,  318,  319. 
jurisdiction  to  issue  writ : 
concurrent,  321,  note, 
conflict  of,  318,  319. 
federal  courts,  313.  314,  31(1. 
state  courts,  318.  319. 
parties,  316. 
petitioner,  316. 
procedure,  316,  317. 
respondent,  316. 
restraint,  315,  316. 
return,  317. 

suspension  of  privilege,  S30. 
authority  for,  820-322. 
by  whom  suspended,  321,  322. 
effect  of,  322. 
how  suspended,  328. 
Harborinfc  the  enemy.  417.  418.    (See  iith  and  itth 

Articles  of  War.) 
Henry  VII.,  Articles  of  War,  339. 
HirioK  duty,  406.    (See  36th  and  37th  Articltt  of 

War.) 
History  of  military  law,  1-4. 
UoldinK    rorrespondeuce    with    eacny,   417,    418. 

(See  46//i  Article  of  War.) 
Homicide,  445-449  (see  58f^  Article  of  War): 


58 


IMJEX. 


Honiicido— Conhnuerf. 

criminal,  447. 

ileflnicioii,  447. 

e:icusable,  44T,  448. 

felonious,  447. 

justifiable.  447,  448. 

manslaughter,  416,  447. 

murder,  445,  446. 

obedience  to  law,  447,  448. 

self-defense,  448,  449. 
Honor,  courts  of,  16. 
Honorable  iliseharge,  353-355. 
Horse,  372.  373  (see  Mth  Article  of  War) : 

losuig,  37-.',  373. 

responsibility  for,  372,  373. 
Hours  of  session,  133-137.    (See  Sessions.) 
Houses,  waste  or  spoil  in,  436,  437. 
Husband  anil  wife,  257,  258  (see  Evidence)  : 

cause  of  incompetency,  257. 

exceptions  to  rule,  257,  2,58. 

extent  of  incompetency,  257,  258. 
Idem  sonaus,  107.    (See  Pleas.) 
Idiocy.  125  (see  Defenses) : 

character,  125. 

defense,  125. 

distinguished  from  lunacy,  125. 

test,  125. 
Ignorance,  129.  130  (see  Defenses)  : 

of  fact,  129,  130. 

of  law,  382. 
Impositions,  374,  375.    (See  18th  Article  of  War.) 
Imprisonment,     167-170,     185-190     (see    Confine- 
ment) ; 

ball  and  chain,  187. 

beyond  expiration  of  service,  188. 

character  of.  188, 189. 

commissioned  officers,  167-170. 

confinement  to  limits,  170. 

enlisted  men,  185-190. 

execution,  168,  188-190. 

hard  labor.  187. 

labor  required  during,  188-190. 

le;?al  effects,  185. 

military  prison,  186,  187. 

penitentiary,  169,  185. 

solitary  confinement,  187,  188. 

State  prison,  169,  185. 

when  operative,  169. 
Iiicidentsof  the  trial,  82-162.    (See  Trial.) 
Inclosures,  waste  or  spoil  in,  436,  437. 
Included  offense,  144.    (See  Finding.) 
Incompetency  of  witnesses  : 

crimen  falsi,  253. 

felony,  2.52-254. 

idiocy.  258. 

infamy,  25»-254. 

infancy,  258,  259. 

insanity,  259. 

interest,  254-258. 

lunacy.  259. 

presumption  as  to  competency,  260. 

procedure,  260,  261. 
Indian  reservations,  328-.331  : 

arrests  on.  .328,  331 


Indian  reserTations^Conhnwed. 

exclusion  of  persons  from,  328-331. 

intruders,  ejection  of,  328,  331. 
Inevitable  accident,  364. 

Infamous  conduct,  468.     (See  61st  Article  of  War.) 
Infamy,  252-254  (see  Evidence) : 

definition,  252. 

eflect,252. 

procedure,  254. 
Infancy,  125  (see  Defenses) : 

capacity  of  infants,  125. 

presumptions,  125. 
Inferior  courts,  22-25,  211-219,   498-502  (see  SOth- 
S5th  Articles  of  War): 

constitution  and  composition,  22-25,  498-502. 

garrison,  23,  212,  216,  217,  500-504. 

field  officer's,  23,  212,  217,  498-504. 

jurisdiction.  212,  502-504. 

regimental,  22. 

restrictions  on,  211-219,  502-504. 

summary  court,  25,  212-216. 
Inferiors  in  rank,  2H  (see  Article  79)  : 

detail  of,  28. 

trial  by,  28. 
Inquiries.      (See  Courts  of  Inquiry.) 
Insanity,  125  (see  Defenses) : 

character,  125. 

lucid  intervals,  125. 

presumptions  as  to,  125,  126. 

test,  125.  126. 
Insurrection,  320-328  : 

against  Federal  government,  326,  327. 

against  State  governments,  327,  328. 

duty  of  President,  320  338. 

power  to  suppress,  326-:i38. 

proclamation  to  insurgents,  326,  327. 
Intelligence,  giving,  to  enemy,  417,  418.  (See  46ffc 

Article  of  War.) 
Intent,  allegations  respecting,  642-643. 
Interest,  89,  2.54,  2.58  : 

accomplices,  257. 

accused,  255. 

as  ground  of  challenge,  89. 

competency,  how  restored,  255. 

co-defendants,  257. 

husband  and  wife,  857,  258. 
Interlineations,  196. 
Interpreter,  40,  41. 

appointment,  41. 

compensation,  41. 

duty,  41. 

eligibility  of  judge-advocate,  41. 
member,  41. 

introduction,  96. 

oath,  41.  96. 

pay,  41. 

swearing  of,  90. 
Interrof^atories,  296  (see  Depositions) : 

cross-interrogatories,  296. 
Intoxication,  126,  127  (see  Drunkenness): 
on  duty,  126,  127. 
when  chargeable  under  61s<  Article  of    War, 

468. 
when  chargeable  under  62d  Article  of  War,  474. 


IM)EX. 


159 


Introdaetioa  ofkccoMd  : 

of  counsel.  rt4. 
of  witnesses,  119. 
iDTentorjr  of  effects  of  deceJents.  562. 
lron<i.    (See  Prisoners  &nA  Trial,  66.  67.) 
Jeop«rdT.   twice  in,  533-535.  (See  102d  Article  of 

iVnr.) 
Joind«r,   75,   76.     (See  Joint  Charges,  75,  76;  see 

Charges.) 
Joint  rharKes,  75,  76  (see  Charges) : 
combination  in  offense,  75. 
concert  of  action.  75. 
conditions  necessary  to  joinder,  75,  76. 
form,  652 

when  appropriate,  75. 
JoarnalH  of  TongreHS,  as  evidence,  280,  281. 
Jndge-adTocate,  Si-as,  121-123  (see  Article*74,  84, 
85,  90.  91,92,  and  113): 
absence  of,  136. 
administration  of  oatbs,  91-96. 
appointment,  33. 
assistant  to,  US. 

attachment,  process  of,  248-250. 
authority,  33-35. 
challenges,  85-90. 
challenge  of,  35. 
channel  of  communication,  33. 
charges,  amendment  by,  36. 
civilian  as.  33. 
commissioned  offlcer  as,  33. 
conduct  of  prosecution,  123. 
counsel  for  accused,  36. 
detail,  33. 
duties,  34-40,  191. 
duties  as  to  record,  191. 
eligibility  for  detail,  33,  34. 
employment  of,  33. 
independence  of,  35,  123. 
not  subject  to  challenge,  85. 
oath,  92. 

opinions  of,  37,  33. 
performance  of  other  duty,  137. 
prosecutor,  33-38,  119-123. 
record,  191. 
relief  of,  34. 
responsibility  of,  35. 
source  of  authority,  34. 
summoning  witnesses,  35. 
witness,  131. 

witnesses,  duties  respecting,  35. 
.lailge-adTOcate-general  : 
oustixlian  of  records.  153. 
duty  respecting  records,  553. 
opinions.  6. 
Judicial  notice,  272,  273  (see  Evidence): 
decisions  of  courts,  272. 
fi>reigii  laws.  272. 
judgments,  272. 
laws,  272. 
officers,  etc.,  272. 
revised  statutes,  2T2. 
statutes.  272.  273. 
Jurisdiction  of  courts-martial,  42-60  : 
after  expiration  of  service.  58. 


JnriNdiction  of  con rtit-aartial— Continued. 

appellate,  60. 
amenability  to,  54-58. 
beginning  of,  54. 
double,  43. 
end  of,  58. 
citizens,  51. 
cla.ssiflcation,  43. 
commissioned  oCQcers,  54. 
concurrent,  43. 
conscription,  51. 
convicts,  58. 
enlisted  men.  54,  56. 
exclusive,  42. 

field  officer's  court,  498,  502-S04. 
garrison  court,  502-504. 
inferior  courts,  502-504. 
limitations  on,  44-46. 
military,  42. 
offenses,  .^9,  60. 
articles  of  war,  59. 
how  created,  .'39. 
interpretation  of,  60. 
officers,  54. 
persons,  46-.59. 
camp  followers,  etc.,  51. 
civilians,  51-.54. 
conscripts,  51. 
convicts,  58. 
militia,  47-51. 

offenders  against  military  law,  51-34. 
regular  troops,  47. 
retainers  to  camp,  51. 
volunteers,  47. 
place,  43. 

records  must  show,  42. 
regimental  court,  502-504. 
restrictions  on,  44. 
sources  of,  42. 
statutes  of  limitation,  44-46. 
termination  of  amenabiUty  to,  58. 
time,  43. 
desertion,  46. 
limitation  on,  44-46. 
statutes  of  limitation,  44-46. 
war,  44,  51,  52. 
Justifiable  homicide,  447.    (See  Homicide.) 
Larceny  (see  bSth  Article  of  War); 
asportation,  449. 
definition,  449. 
intent,  449. 

removal  of  article,  449. 
subjects  of,  449. 
under  62d  Article,  449. 
when  triable,  449. 
Lawful  Orders,  380,  381.     (See  Orders.) 
Laws  of  War  : 
being  a  spy,  562,  563. 
lurking  as  a  spy,  562.  563. 
nature  of  offense,  562,  563. 
Leadinir  questions.  121,  \-Sl,  286  (see  Evidence)  : 
aiimissibillty,  121,  286. 
character.  236. 
cross-examination,  286. 


i 


60 


INDEX. 


Lradins  questioni— Contmufd. 

definition.  121. 
exceptions.  286. 
hostile  witness,  286. 
identification,  286. 
introductory  questions,  286. 
objections  to,  286. 
test  of,  286. 
LeaTJDs:  guard,  etc.,  413,  414  (see  40th  Article  of 
War)  : 
post,  409-41.3. 
Lesser  included  offense,  144,  477.    (See  Finding 

and  62rf  Article  of  War.) 
Liability  to  military  law  : 
beginning.  54. 
civilians,  46,  51-54. 
enlisted  men,  46. 
militia,  47-61. 
officers,  46. 
regulars.  47. 
termination,  .^6. 
Tolunteers,  47. 
LimitationN  in  jurisdiction,  44.    (See  Statutes  of 

LitiutatidH  and  Wid  Article  of  War.) 
Limiti  of  panishment,   163,  343,  344,  727-734  (see 
Punishvient): 
power  of  president  to  impose,  163. 
Lord  Higii  Constable,  13.    (See  Constable.) 
Loss  of  flies,  532,  533  (see  101st  Article  of  War) : 

rank,  529,  533. 
Loss  of  record.  197.    (See  iJecord.) 
Lurking  as  spies,  562. 
Lying  out  of  quarters,  etc.,  401,  402. 
.Majority  necessary  for  death  sentence,  520. 
making  good  time  lost,  430,  431  (see  iSth  Article 
of  War) : 
absentees  without  leave,  430. 
conviction  not  essential,  430. 
restoration  to  duty,  430,  431. 
waiver  of  liability,  431. 
Handatory  sentences,  149. 

Manslaughter,   446,    447.     (See   bSth   Article   of 
War) : 
definition,  446. 
degrees,  446. 
homicide,  445-449. 
intent,  446. 
mvoluntary,  446. 
voluntary,  446. 
when  triable,  446. 
H  arches,  4.35-437  (see  5ith  and  bbth  Articles  of 
War): 
behavior  on,  435-437. 
comnnand  in,  559,  560. 
good  order,  435-437. 
injury  done,  435,  4.36. 
reparation  for  injury,  435,  436. 
rule  of  command  on,  559,  560. 
Marine  corps,  26,  496,  497  (see  Article  77): 
assignment  to  duty,  496,  497. 
command,  496,  559,  560. 
courts  for  trial  of,  26. 
land  service  of,  26. 
naval  service  of,  26. 


Marine  corps — Continued. 

rank,  559,  560. 

relative  rank,  560. 
Marital  coercion,  128.    (See  Defenses.) 
Markets,  disturbing.  435,  436. 
Marking  the  body,  prohibited,  524.    (See  Puniik' 

ments.) 
Marshal,  Earl: 

authority,  14. 

duties,  14. 
judicial  powers,  14. 
Marshal's  court,  14  (see  Court-martial): 

authority,  14. 

jurisdiction,  14. 
Material  witness,  88.    (See  Challenges.) 
Mayhem,  453  (see  58th  Article  of  War): 

definition,  453. 

intent,  453. 

scope  of  offense,  453. 
Headons,  waste  or  spoil  in,  436,  437. 
Medical  officer  : 

on  duty,  408. 
Meeting  of  court,  82. 
Members  of  courts-martial,  26-41: 

absence  of,  136. 

absent,  136. 

behavior,  138. 

challenges  to,  85-90. 

commissioned  officers,  26. 

deliberations,  138-139. 

demeanor,  138. 

detail,  26,  .32. 

duties,  31. 

eligibility,  26,  27. 

equality,  30,  31,  138,  139. 

interpreters,  41. 

marine  corps,  26. 

militia,  27. 

new,  32,  136,  137. 

number,  27,  32. 

oath,  92. 

order  of  voting,  31. 

performance  of  other  duties,  33, 187. 

president,  authority  of,  138. 

qualifications,  26-30. 

rank,  26-28. 

relieving,  27.  32. 

volunteers,  27. 

voting,  31. 

witnesses,  131. 
Membership    of  conrts-martial,   26-30,    191-1V3, 
494,  495  ((see  7bth-79th  Articles  of  Irur)  •. 

challenges,  85-90. 

changes  in,  192,  193. 

commissioned  officers,  26-30. 

eligibility,  26-,30,  494,  495. 

general  courts-martial,  26-30. 

inferior  courts,  30. 

inferiors  in  rank,  497. 
marine  corps,  26,  496,  497. 
maximum,  27,  29. 
militia,  27,  495,  496. 
minimum,  29,  494,  495. 
oath,  91-96. 


INDEX. 


761 


Meraberfihlp  of  coartK-martUI— Continued. 

qualifications,  26-30. 

rank,  497. 

record  of,  192,  193. 

reduced,  138. 

regular  officers  495. 

TOlunt»'t'rs.  27,  495,  496. 
nilitnrjr  Academy  : 

general  courts-iuartial  at,  22. 

professors,  26. 

fstipprintetident  as  convening  authority,  28. 
Military  boards,  229-343: 

composition,  229. 

constitution,  229. 

duties,  229,  230. 

examining.  2.30-236. 

of  survey,  238-242. 

on  desertion,  241. 

powers,  229. 

procedure,  230. 

records,  230. 

retiring,  2.36-238. 

review,  230. 

to  determine  character,  342. 
Military  force,  employment  of,  323-338. 
Military  jurisdiction,  52. 
Military  law  : 

Articles  of  War,  4. 

authority.  1. 

classification,  4. 

customs  of  service,  10. 

definition,  1,  5. 

distin^'uished  from  martial  law,  5. 

history,  1-4. 

orders,  9. 

origin,  1. 

regulations,  6-9. 

sanction,  1. 

sources,  1-4. 

unwritten,  10. 

written.  4. 
Military  offenses  : 

Articles  of  War,  59. 

created  by  statute,  59. 

interpretation  of  statutes,  60. 

limitation.  44-46. 

not    territorial,    479,   480    (see   64t/i  Article  of 
War). 

place  of  commission,  43. 

statutes  of  limitation,  44-46. 

statutory,  .")9. 

territoriality  of,  479,  480. 

time,  44.  .W. 
.Hilltary  tribunals,  13-16  (see  Courti-martiat) : 

authority,  15. 

chivalry,  court  of,  13. 

classification,  16. 

composition,  26-41. 

Constables  Court,  13. 

constitution.  17-25. 

courts  of  honor,  16. 

executive  agencies,  15. 

function,  15. 

how  created,  16. 


Military  tribanaU— rontinued. 

how  terminated,  16, 
Militia,  47-51  : 

active  service  of,  48-51. 

application  of  military  law,  51. 

appointment  of  officers,  48. 

calling  forth,  48,  50. 

command,  561. 

composition  of  courts,  37. 

conscription,  51. 

definition,  47. 

discipline,  48. 

embodied,  47. 

emergency,  by  whom  determined,  49. 

employment,  48-50. 

enrolled.  47. 

national  guard,  49,  notes. 

national  militia,  48. 

organized,  47. 

President,  power  over,  48. 

rank  of  officers,  561. 

service  of,  48-51. 

State,  48. 

subject  to  military  law,  when,  60,  479,  480. 

term  of  service,  49. 

use,  49. 
Minor  included  offense,  144,  147.    (See  Finding.) 
Misadveuture,  448.     (See  Homicide.) 
Misapplication,  4G6.    (See  60th  Article  of  War.) 
Misappropriation,    466.      (See    GOth    Article    of 

War.) 
Misbehavior,  415-416.    (See  42d  Article  of  War.) 
Misdescriptions,  108.    {See  Pleas.) 
Misnomers.  107,  108  (see  Pleas): 

how  corrected,  107,  108. 

misnaming,  etc.,  107,  108. 
Misprision  of  mutiny,  392. 

Mitigation,  209,  551,  552  (see   Pardons  and  U2th 
Article  of  War): 

definition,  209. 

effects,  209. 

how  exercised,  209. 

limitation  on  power,  209. 

when  exercised,  209. 
Money,  accountability  for  : 

blank  receipts,  464. 

responsibility  for,  464. 

short  payments,  464. 
Modification  of  charges,  75.    (See  Charges.) 
Murder,  445,  446  (see  bSth  Article  of  War): 

death  sentence,  approval  of,  543. 

definition,  445. 

degrees,  415. 

intent,  445,  446. 

malice  aforethought,  445,  446. 

premeditation,  445,  446. 
Mustering  officer,  368. 

dutie.s,  30S. 

false  musters,  367-369. 
Musters.  366-369  (see  .4?fic/e  14): 

certificates,  .366,  .367. 

liefmition.  367. 

evidence  of  false,  367. 

false  musters,  367-369. 


62 


INDEX. 


Musters—  Continued. 

how  made,  368. 

musteriiif:  officer,  368. 

muster  in.  367.  368. 

muster  out,  367,  368. 

muster  rolls,  367-369. 

purpose,  368. 

rolls,  367,  368. 
Mntiny  Act,  2. 
HDtiny.  3S9-.393  (see  25d  Article  of  War): 

approval  of  sentence,  543. 

beginning,  390, 

causing.  390. 

definition,  .390. 

diligence  in  suppression,  392. 

duty  to  inform,  .392. 

failure  to  inform,  392. 

force  in  suppression,  .'i92,  393. 

sedition,  390. 

suppression,  duty  of,  391-393. 
.Neglects : 

when  chargeable,  473,  474.  (See  62d  Article  of 
^^'ar.) 
>egligenre,  4C«.  473,  474  (see  60ffc  and  62d  Articles 
of  War) : 

duty,  how  performed,  473,  474. 

w  lien  chargeable,  473.  474. 
New  members.  32,  137.    (See  Members.) 
New  Mexico,  peonage  in,  332,  .333. 
Newspapers,  publication  of  sentence  in,  528,  529. 

(See  \00th  Article  of  War.) 
.N'orthumberliind.  Articles  of  War,  340. 
Number  of  charges,  72. 
Number  of  members,  27  30  : 

general  courts,  27. 

inferior  courts,  30. 

reduction  in,  20. 
Number  of  witnesses,  293. 
Nolle  prosequi,  118  : 

kiy  whom  entered,  118. 

definition,  118. 

discontinuance,  118. 

effect,  118. 

power  to  enter,  118. 

restriction.";  on,  118. 
Oath  of  enlistment,  304,  343,  344  : 

pivotal  character,  343,  341. 
Oath,  member's,  91-96  (see  84</i  Article): 

administered  by  judge-advocate,  91,92. 

administration  of,  91,  92,  119,  505. 

affirmation,  119. 

form.  92,  504. 

judge-advocate,  92,  506,  .507. 

member's,  92.  504-106. 

minor  courts-martial,  95. 

obligation  of,  9:J-95,  ,505-  507. 

record  of,  194. 

secrecy,  94-95. 

when  administered,  91,  92. 

witnesses,  119,  516,  M7. 
Oalbs  : 

profane,  431,  4.35. 

penalty  for  using,  4.34,  435. 

procedure,  434,  435. 


Oath,  witnesses",  119.  516. 

administration  of,  119,  285. 

affirmation.  119. 

effects,  119. 

form  of,  119. 

how  administered,  119. 
Obedience  to  orders.  128  (see  Orders)  : 

as  a  defense,  12H. 
Objection  to  member,  85-90.    (See  Challenges.) 
Offense  : 

civil,  when  triable,  76. 

joint,  75,  76. 

lesser  included,  144. 

limitations  on  prosecution,  111-113. 
Offenses,  military,  59,  60.    (See  Military  Offenses.) 
Office,  disqualification  for,  167. 
Off  duty,  408 
On  duty,  408  (see  38f7i  Article  of  War)  : 

commanding  officer,  408. 

commissioned  officer,  408. 

enlisted  man,  408. 

medical  officer,  408. 
One  mile  from  camp,  without  leave,  etc.,  406. 
On  leave.  408.    (See  On  Duty.) 
Open  sessions,  191,  192. 
Opinion,  261,  262  (see  Evidence)  : 

admissibility.  261. 

challenges  for,  89. 

court  of  inquiry,  558,  559. 

exclusion  of,  261.  • 

experts.  261,  262. 

hypothetical  question,  262. 

procedure,  262. 

when  receivable,  262. 
Opinions,  attorney-general,  6. 

judge-advocate  general,  6. 
Oral  statements,  in  specifications,  75. 
Order,  maintenance  of,  473,  474  (see  62d  Article  of 
War) : 

of  examination,  285. 

of  voting.  31 .    (See  95/7i  Article  of  War.) 
Orders,  378-389  (see  21s<  Article  of  War)  : 

as  evidence,  282,  283. 

binding  force,  379. 

channels  of  communication,  385. 

definition,  379. 

disobedience  of,  9,  10,  382-387. 

duty  of  obedience,  379,  380. 

elements,  .380. 

form,  379. 

general,  379. 

lawful  orders,  380,  381. 

obedience  to,  10,  379,  380. 
as  a  defense,  .386,  387. 

operative  when,  382. 

penalty  for  disobedience,  378. 

presumption  of  knowledge,  385. 

responsibility  for  obedience,  386,  .387. 

special,  .379. 

when  operative,  382. 
Ordnance  Department,  regimental  courts  in,  499, 

.50(1.     (See  SUt  Article  of  Wur. » 
I'enitentiary.  confinement  in,  169,  185.    (See  97tA 
Article  of  War.) 


INDEX. 


7(;3 


PerJDry,  454-456: 

Vwlief,  matter  of,  454, 

defliiition,  454. 

evidence,  455. 

false  swearing,  456. 

falsity  of  oath.  454. 

in  military  practice,  455. 

judicial  proceeding,  454. 

intent,  4.')4. 

material  proceeding,  454. 

number  of  witnesses,  4.'J5. 

oath,  administration  of,  454. 
judicial  proceeding,  454. 
materiality  of  fact,  454. 

opinion,  matter  of,  454. 

when  triable,  455. 
rerNuadiiig  to  desert,  432,  433  (see  Slsf  Article  of 
War)  : 

nature  of  offense,  433. 

penalty.  433. 
Fronaee  in  New  Mexico,  332,  333. 
Pillasring.  415,  416.     (See  42d  Article  of  War.) 
riAtoon,  quitting,  413,  414.    (See  iWi  Article  of 

War.) 
Pleadings,  90.    (See  Pleas.) 
Pleas  : 

abatement. 

bar  of  trial,  100. 
autrefois  acquit,  100,  101. 
pardon,  103. 

forms  of,  683-686. 

jurisdiction.  96-100. 
amenability  of  accused,  98,  99. 
composition  of  court,  98. 
constitution  of  court,  97,  98. 
convening  officer  as  accuser,  97. 
offense,  100. 

record  of,  196. 
Pledges,  violation  of,  470.     (See  61sf  Article  of 

War.) 
Plundering,  415,  416.    (See  42d  Article  of  War.) 
Politlral  discussions,  375,  376. 
Posse  comitatus,  335.  336. 

employment  of  army  forbidden,  335,  336. 
Post  : 

abandonment  of,  415,  416. 

leaving,  413.  414. 

quitting,  4i;i-415. 
Post  ronimander  : 

action  on  charges,  79,  80. 

convening  authority,  84. 

revisit:g  authority,  216,  217,  546. 

summary  court,  25,  215. 
Postponements,  90.  91  (see  Continuances): 

by  whom  mmie.  90,  91. 

convening  authority,  90,  91. 

grounds  for,  90,  91. 

reasonable  cause,  90.  91. 
Preferrinir  cliarftes,  76.  77  (see  Charges): 

by  whom  preferred,  76. 

civilians,  77 

enlisted  men,  77. 

to  whom  submitted,  791. 

when  preferred,  77. 


Prejudice  of  good  order  and   military  dii^clplia*, 

472-478.     (See  62d  Article  of  War.) 
Preparation  of  chargei,  78.     (See  Charges.) 
President  : 

action  of,  as  reviewing  authority,  200, 

commander-in-chief,  324. 

contemfituous  words  respecting,  .375,  378. 

convening  authority,  17. 

death  sentences,  action  on,  543. 

disrespectful  words  re.specting.  375,  376. 

execution  of  laws,  325. 

insurrection,  etc.,  duties  respecting.  32C,  327. 

limits  of  punishment.  343,  344,  727-7*4. 

martial  law,  power  to  recognize,  305,  300. 

militia,  authority  over,  50,  51. 
calling  forth,  50,  51. 
command  of,  50,  51,  323,  324. 

pardoning  power,  204-208. 

rebellion,  suppression  of,  326,  327. 

reviewing  authority,  200. 

restoration  of  order,  324. 

suspension  of  sentence,  546.     (See  l\Uh  Article 
of  War.) 
President  of  conrt-niartial.  30,  31  : 

acts  for  court,  .30,  31. 

authentication  of  proceedings,  200. 

authority  as  chairman,  31. 

duties,  30,  31. 

order,  duty  respecting,  31. 

organ  of  communication,  31. 

presiding  officer,  30,  31. 

succession  to  office,  30. 

vote,  30,  31. 
Presumptions,  298,299  (see  Evidence): 

absolute,  299. 

character,  298,  299. 

conclusive,  299. 

disputable,  299. 

effects,  299. 

fact,  298,  299. 

law,  298,  299. 

purpose,  298. 
Presumptions  of  fact,  289,  299: 

character,  298,  299. 

effect,  299. 

inferences,  298,  289. 
Presumptions  of  law,  298,  299  : 

character,  298,  299. 

effect,  299. 
Previous  acquittal,    100,   101,533-535.      (See   102d 

Article  of  War.) 
Prerious  convictions,  77,  78,  100,  101,  .533.  535  (see 
Charges,  Pleas,  and  ]02d  Article  of  War): 

apply  to  enlisted  men  only,  77,  78. 

definition,  78. 

documentary  evidence  of,  77.  78.  147,  148, 

evidence,  77,  78,  147,  148. 

forms,  77,  78. 

how  prepared  and  submitted,  78. 

plea  ..f.  100,  101. 

preparation  of  evidence'of,  77,  78. 

procedure,  147. 

proof,  148. 

purpose  in  submitting.  147,  148. 


764 


INDEX. 


Prefious  coiiTict ions— Coniinued. 
record  of,  "7,  78. 
submissiou,  77,  78. 
Prince  Rupert,  Articles  of  War,  340.  567-580. 
Prisoners,  66,  67,  485,  487  (see  67f/i  and  68tA  Arti- 
cles of  TJ'ur) : 
charge  against,  67. 

character  of  restraint  imposed,  66,  67. 
confinement  of,  66,  67. 
duty  required  of,  67,  485. 
irons,  66,  67. 

labor  required  of,  67,  485. 
receiving;,  67,  485,  486. 
release  of,  67,  68,  486,  487. 
report  of.  68,  486. 
suffering  to  escape,  486,  487. 
PriTate  documeuts,  283-285  (see  Evidence)  : 
comparison  of  writings,  284. 
copies.  283. 
custody,  283. 
evidential  value,  283. 
handwriting,  283,  284. 
notice  to  produce,  283. 
production,  283. 
proof,  283,  284. 
subpoena  duces  tecum,  283. 
telegrams,  284. 
writings,  comparison  of,  284. 
PrlTileged  questions,  287-290  (see  Examination.s 
of  iritn  esses) : 
attorney  and  client,  287,  288, 
criminating  questions,  288. 
degrading  questions,  286,  289,  293. 
husband  and  wife,  288. 
state  secrets,  287. 
Proceedings  (see  Trial) : 
contempt,  139,  140. 
clo.sed  sessions,  134,  135. 
open  sessions,  134,  135. 
record  of,  191-198. 
revision,  15S-160. 
Proclamations,  amnesty,  105. 

to  insurgents,  326,  327. 
Profane    oaths,    4.34,    435    (see    53d    Article   of 
War)  : 
penalty,  435. 
procedure,  435. 

proceeds,  application,  434,  435. 
Profanity,  434,  435  (see  53d  Article  of  War) : 
nature  of  offense,  434,  435. 
penalty,  435. 
Professors  at  Military  Academy  : 
not  eligible  as  members  of  courts-martial,  26. 
status,  26. 
Prohibited  enlistments,  346,  300,  351 
aliens,  346. 
deserters,  350. 
infants,  346,  350. 
insane  persons,  350. 
Intoxicated  persons,  350. 
minora,  -350. 
Protection,  to    persons  of   citizens,  435-437  (see 
Uth-^th  Articles  of  War) : 
to  property,  435-437. 


Property,  361-365  (see  9th,  10th,  54th,  55th,  56th, 
57th,  and  5Sth  Articles  of  War) : 
accident,  364,  365, 
avoidable,  364. 
inevitable,  364. 
unavoidable,  364,  365. 
accountability  tor,  364, 
disciplinary,  364. 
fiscal,  364. 
blank  receipts,  464. 
captured,  361-363. 
injuries  to,  on  march,  435,  436. 
receipts  in  blank,  464. 
responsibility  for,  300-364. 
rendition  of  returns,  360-364. 
returns  of,  360  364. 
Prosecuting  witness,  123. 
Prosecution,  119-124  (see  Trial) : 
address  in  opening,  119. 
close  of,  124. 

conducted  by  judge-advocate,  123. 
independence  of  judge-advocate,  123. 
introduction  of  testimony,  119-124. 
power  of  court  over,  123. 
prosecuting  witness,  123. 
prosecutor,  123. 
testimony  for,  119-124. 
Prosecutor,  17,  18,  88,  123.  (See  Accuser  and  Chal- 

lenges.) 
Protests,  145.    (See  Finding.) 
ProTisious,  bringing  in,  437,  438  (see  56th  Article 
of  War)  : 
violence  to  persons,  etc..  437,  438. 
Provoking  speeches,  etc.,  394-396.    (See  25th  Arti- 
cle of  War.) 
Pablication  of  sentence,  166.    (See  \00th  Article.) 
Public  documeuts,  275-283. 
authentication,  275. 
copies,  275. 

court-martial  records,  282. 
descriptive  tests,  283. 
evidential  value,  276. 
executive  departments,  records,  278,  279. 
journals  of  Congress,  280,  281. 
judicial  records,  280,  281. 
judgments,  281. 
military  orders,  282. 
morning  report  book,  283. 
outline  cards,  283. 
pay  accounts,  283. 
physical  examination  paper,  283. 
previous  convictions,  78. 
primary  evidence,  276,  277. 
production,  275. 
proof,  832. 
records  : 
court-martial,  282. 
executive  departments,  278,  279, 
posts,  282,  283. 
secondary  evidence,  276,  277. 
state  laws,  etc.,  280. 
territorial  laws,  etc.,  280. 
Public  admonitioni,  216. 
Public  land!  : 
removal  of  intruders  from,  331. 


INDEX. 


765 


Public  K*SNiOD8,  134,  135.    (See  Seasions.) 
PoDishmeiitN,  163-191  (see  Sentence) : 
comiiiissioiied  oflRcers,  165-182  ; 
confinement;  see  imprisonmeut,  167-170,  185-190. 

ball  and  chain.  187. 

commissioneil  oflBcers,  167-170. 

enlisted  men,  185-190. 

hard  labor,  187. 

solitary,  187. 
cruel,  163. 
death,  165,  182. 

execution,  165,  16u. 
discharRe,  183-185. 

execution,  184,  185. 
dismissal,  106,  167. 

execution,  106,  167. 

publication,  166. 

statutory  consequences  of,  166,  167. 
disqualification  for  office,  167. 
executive  orders  respecting,  163. 
fines,  175,  176. 
forfeitures,  177-179. 
imprisonment,  167-170,  185-190. 

execution,  168,  169,  187-189. 

penitentiary,  169. 

state  prison,  169. 
increase  of,  164. 
limits  of,  163  727-734. 
reduction  in  ranlc,  174. 

to  the  ranks,  175,   182. 
reprimands,  181,  182,  190, 
restrictions  on,  163. 
solitary  confinement,  187. 
sources,  165. 
stoppages,  178-181. 
suspension,  171-174,  182. 
unusual,  163. 
Pardon  ing   power,   204-210  (see  108«/i  Article  of 
War)  : 
commutation,  210. 
conditional  pardons,  206. 
constructive  pardons,  207. 
continuing  punishments,  206. 
effects  of  exercise,  205. 
exercise  of,  in  time  of  war,  543,  544. 
general  power,  200.  204.  205. 
mitigation,  209. 
not  retroactive,  207. 
remission,  208. 
source,  208. 
PardooR,    204-210   (see   Pardoning   Poiver;    also, 
W'tth  and  112//1  Articles  of  War)  : 
commutation,  210,  502. 
conditional,  200,  550. 
continuing  punishments,  206. 
constructive  pardons,  207,  550. 
effects,  205. 

general  power,  204,  205. 
mitigation,  550.  , 

not  retroactive,  207. 
president,  power  of,  200,  208. 
remission,  208,  553. 
sources,  208. 
Parks,  waste  or  spoil  in,  436,  437  : 


Parole,  410,  417  (see  4'Uh  Article  of  War)  ; 
check  on  countersign,  416,  417. 
countersign,  416,  417. 

how  used,  416,  417. 

purpose.  416,  417. 

to  whom  imparted,  416,  417. 

watchword,  416,  417. 
Pajr  acrouDtH,  duplication  of,  470.    (See  60th  and 

out  Articles  of  War.) 
Petuniarj   obliKationN,  neglect  of,  470,  471.    (See 

inst  Artirle  of  War:) 
Peremptory  cballengeK  not  aathurized,  66. 
Performance  of  dot;,  standard  of,  472,  473. 
(Quitting  guard.  413,  414.  (See  40<;i  .4r(«c/e  o/ ITar.) 
quitting  poNt,  409-413.    (See  39</i  Arlicle  of  War.) 
(^narrelN,  suppression  of,  393,  394.   (See  24</i  Arti- 
cle.) 
(|uarter8  : 

absence  from,  without  leave,  402-404. 

behavior  in,  436,  437. 

false  alarms,  413,  414. 

lying  out  of,  401,  402. 
Uank  : 

definition,  560. 

grades,  560. 

inferiority  of,  as  ground  for  challenge,  89. 

loss  of,  532,  533. 

members.  26,  28,  497. 

military,  560. 

militia,  561. 

relative  rank,  560. 

suspension  from,  529-533. 
Kape  (see  h%th  Article  of  War) : 

assault,  etc.,  with  intent  to  commit,  452,  458. 

carnal  knowledge,  452. 

capacity,  452. 

consent,  452. 

definition,  452. 

force  used,  452. 

incapacity  to  commit,  452. 

incapacity  to  consent,  452. 

intent,  452. 

sentences,  approval  of,  543. 
Reading  of  Articles  of  War,  562  (see  128<;i  Article 

of  War)  : 
Reading  over  testimony,  121. 

Receipts  in  blank,  404.    (See  60th  Article  of  War.) 
Receiving  Ntolen  goods,  452. 

guilty  knowledge,  452. 

intent,  452. 
RecoraniendatiODN  to  clemency,  156.  157. 

discielionary,  156. 

not  obligatory,  157. 

procedure,  157. 

reasons  for,  157. 

record,  not  part  of,  157. 

several  may  be  submitted,  157. 

signatures  to,  157. 

to  whom  made,  157. 

when  appropriate,  157. 
Record,  191-198,  553  (see  l\3th  Article  of  War) : 

accused  entitled  to  copy,  553. 

adjournnients,  195. 

arraignment,  192,  194. 


6t> 


INDEX. 


Berori-  Continued. 

autht?uticacion,  195,  196. 

challenges,  193. 

ehanofes  in  membership,  192,  193. 

charges  and  specifications,  194. 

closed  sessions,  191,  192. 

disposition  of,  553. 

contents,  191. 

control  of,  191. 

convening  order,  192,  193. 

copy  of,  to  accused,  197,  553. 

definition,  191. 

destruction  of,  197. 

disposition  of : 
general  courts,  197. 
inferior  courts,  197. 

erasures,  196. 

exclusion  of  matter,  195. 

findings,  195. 

general  character,  191,  198. 

hours  of  session,  190. 

interlineations,  196. 

judge  advocate,  duty  respecting,  553. 

kept  by  judge  advocate,  191. 

loss  of,  197. 

membership,  192,  193. 

open  sessions,  191,  192. 

organization  of  court,  193. 

pleas,  196. 

presumption  as  to  regularity,  195. 

responsibility  for,  191. 

revision,  196 

sentence,  195. 

separate  in  each  case,  192. 

swearing  of  court,  194. 

testimony,  192,  194. 
Records  of  courts-martial  : 

as  evidence,  282. 
Redirect  examination,  285.     (See  Examination 

of  Witness.) 
Redress  of  Wrongs,   224-228  (see  29t/i  and  Zdth 
Articles  of  War)  : 

appeals,  224,  225,  227. 

commanding  officer,  224,  225. 

enlisted  men,  225-228. 

method  in  case  of  officer,  224,  225. 

method  in  case  of  soldier,  225-228. 

procedure,  227. 

regimental  court  for  doing  justice,  223-228. 
appeals,  227. 
jurisdiction,  225-'227. 
Reduced  membership,  39. 
Reducing  questions  to  writing,  121. 
Reduction,  174,  182: 
in  rank,  174. 

In  i\i>t  ranks,  182. 
Refreshing  memory,  292  (see  Evidence) : 
memorandum,  292. 
notes,  by  whom  made,  292. 
Refusal  to  receire  prisoners,  485. 
Regiment,  Articles  of  War  to  be  read  to,  562. 
Regimental  coart,  22,  216,  217,  499-502  (see  8Ut 
Article  of  War)  : 
composition,  216,  217,  500-502. 


Regimental  court— Continued. 

constitution,  216,  217,  500-502. 

jurisdiction,  211,  217.  .502,  503. 

procedure,  216,  217. 

record,  216,  217. 

review,  217. 
Regimental  court  for  doing  justice  (see  30th  Arti- 
cle of  War) : 

appeals  from,  227,  228. 

composition,  225,  226. 

constitution,  225,  226. 

limitation  on  jurisdiction,  226. 

parties,  227. 

procedure,  227. 

record,  227. 

restriction  on  authority,  226. 

review,  227,  228. 
Regulations  (see  Army  Regulations),  6-10. 
Relevancy  of  testimny,  263.  266. 
Relief  of  judge-advocate.  34  : 

member,  32. 
Relieving  the  enemy,  53.  (See  45</i  Article  of  War.) 
Release  (see  69</i  Article  of  War)  : 

from  arrest,  487-489. 

from  confinement,  486,  487. 

of  prisoners,  67,  68. 
Remarks,  146,  147  (see  Finding) : 

limitation  on,  146,  147. 

on  finding,  146. 

sentence,  146. 

restriction  on,  146,  147. 
Remission,  208,  209,  547  (see  Pardons  and  \nth 
Article  of  War)  : 

definition,  208. 

effects,  208. 

how  exercised,  208,  209. 

when  exercised,  209. 
Removal  of  charge  of  desertion,  429. 
Reparation  : 

for  injury  to  persons,  435,  436. 

for  injury  to  property,  435,  436. 
Report  of  prisoners,  486. 
Reporter  to  court-martial,  40,  41. 

appointment,  40,  41. 

compensation,  40. 

duty,  40,  41. 

oath,  40. 
Reprimands,  181,  190. 

by  whom  administered,  182. 

execution,  182. 

reviewing  authority,  182. 
Reproachful  speeches,  394-396.    (See  25f/i  Article 

of  War.) 
Reputation,  291,  292  (see  Evidence;  Finding): 

how  established,  291. 
Res  gesta,  270,  271  (see  Evidence)  : 

definition,  270. 

rule  as  to  admission,  271. 

when  admissible,  270,  271. 
Responsibility  for  property.  360-365  (see  9(A.  and 
10<;i  Articles  of  War)  : 

captured,  .361-363. 

disciplinary,  364,  .365. 

fiscal,  364,  365. 


lyvt'X. 


767 


BMpontibilit;  for  proptTtj— Continued. 

returns,  360.  364. 
B«t»iaera  to  camp  51,  478,  479  (see  63d  Article  of 
War): 

amenability  to  military  law,  51. 

camp  followers,  51. 

civil  t»tiiployees,  51. 
Retired  offlcers.  338  : 

status,  ^'38. 
Betirini;  Board.s.  •.'36-2.38  : 

actions  on  reports  of,  238. 

authority  for,  236. 

composition.  236. 

coiistitutioD,  236. 

disability,  236,  257. 

findings.  237,  2.38. 
approval  of,  238. 
effects  of,  233. 

proc»»dure,  236. 

purpose,  236. 

record,  237,  708-711, 

report,  237,  23«. 

review.  238. 
Betarn-t,  360: 

accounts.  360. 

false,  360,  ;}61. 

money  accounts,  360. 

of  strength.  .360. 

property,  360. 

vouchers,  360. 
Betarns  of   strensth,  3.59-361    (see  1th  and  8f/i 
ArticUs  of  War) : 

absentees.  3.i9.  360. 

by  whom  rendered,  -359,  360, 

character,  359,  360. 

commanding  officers,  361. 

contents.  .^')9-361. 

definition,  360.  ' 

nominal,  359. 

rendition,  359-361. 

to  whom  rendered,  359-361. 
Betorn§  to  writ  of  attachment,  249,  250. 

to  writ  of  habeas  corpus,  317. 

to  writ  of  subpcena,  246,  247. 
BeTised  Statotes,  272,  273  : 

statutes  at  large,  273,  274. 

supplements  to  revised  statutes,  272,  273. 
Beriewins   authority,  199-210,  537-543  (see  104</i- 
\\\ih  Articles  of  War)  : 

action  of  President,  200,  208. 

adding  to  punishment,  202. 

approval,  201. 

commutation,  210,  552. 

conditional  pardons,  550. 

coufirmalion,  202. 

constructive  pardons,  550. 

continuing  punishments,  206. 

delegation  of  power,  204. 

disapproval,  201,  202. 

duty  of,  199-204. 

indepen  dence  of,  203. 

mitigation.   209,  551,  552. 

nature  of  authority,  203. 

pardooing  power,  204-210,  546-552, 


Review ini;  authoritj-  Continued. 

power,  \'30-Mi. 

President  as,  200,  208. 

reasons  for  action,  202. 

remarks,  203. 

remission,  208,  209,  557. 

restriction  on,  540,  543,  544. 

revision  of  record,  203. 
Revision  proeeediugs,  1.58-160,  5.'57-543. 

accused,  presence  of,  159. 

closed  sessions,  159. 

errors,  159. 

initiation,  158,  159. 

jurisdiction  of  court  in,  158,  160. 

omissions,  158,  159. 

order,  1.59. 

power  of  court,  158. 

presence  of  accused,  159. 

procedure,  159. 

record,  159,  160,  196. 

reduced  court,  160. 

reference  of  proceedings,  158,  159. 

return  of  proceedings,  159. 

revocation  of  finding,  etc.,  159. 

testimony  not  receivable,  159. 
Richard  II.,  Articles  of  War,  3.39. 
Riot,  reparation   for  wrong  done,  435,  436.     (3«« 

r^Wt  Article  of  War.) 
Robbery,  4.50  (see  58f/i  Article  of  War) : 

definition,  4.50. 

force  and,  450. 
actual,  450. 
constructive,  450. 

intent,  4.50. 

putting  in  fear,  450. 

violence,  4.50. 
Bnles  of  evidence,  262-299  (see  EviderKe)  : 

admissions  against  interest,  269. 

admissions  without  proof,  292. 

best  evidence,  263,  267-271. 

burden  of  proof,  263,  266,  267, 

character,  265,  266. 

circumstantial  evidence,  265 

competency,  251-261. 

credibility,  290-292. 

cumulative  evidence,  292,  293. 

depositions,  294-298. 

direct  evidence,  263. 

documentarj-  evidence,  263,  375-285. 

documents,  275-285. 
private,  275,  283. 
public,  283-285. 

erasures,  284,  285. 

examination  of  witnesses,  285-290. 

indirect  evidence,  2G3. 

interlineations,  284,  285. 

judicial  notice,  272-275. 

leading  questions,  286. 

opinions,  261,  262. 

oral  testimony.  263. 

presumptions,  298,  299. 

primary  evidence,  276.  277. 

privileged  communications. 

purpose  of  rules,  244,  245,  262,  2M. 


ih,^ 


imjex. 


Kiiles  (if  eTiilenre— Oinfinncd. 

levelaucy.  •JG3-V166. 

reputation.  'JG5,  200. 

res  ijestcf,  270,  271. 

secondary  cvitleuce,  276,  277. 

witnesses,  24.-).  250.  251-261. 
ooinpetencj-,  251-261. 
credibility,  290-292. 
written  testimony,  263.  275-285. 
SalecuiiKls,  43S,  430  (see  'o'th  Article  of  War) : 

definition.  439. 

I'orciug  a  safef^nard,  439. 

foreign  parts.  438.  439. 

nature  of  offense,  439. 

penalty,  438,  439. 

territory  in  rebellion.  438,  439. 
Scandalous   conduct,    468.     (See    61s<    Article  of 

War.) 
Second    trials,    prohibition.    533-535.      (See    102(i 

Article  of  War.) 
Secrecy,  obligation  to,  93-95.     (See  Oaths.) 
Self-defense,  448,  449.    (See  Homicide.) 
Sentence,  148-158: 

adding  to,  155. 

additions  to,  155,  1.57,  162. 

allowances,  151. 

basis  of.  154. 

capital,  suspension  of,  546. 

civil  offense,  155. 

clemencj-,  recommendation  to,  156,  157. 

commutation,  101. 

day,  days,  150. 

death,  s\ispension  of,  540. 

discretionary,  119. 

dismissal,  suspension  of,  540.  « 

duty  of  members  in  respect  to,  149,  150. 

effect  of,  162. 

excess  of  limit.  l.-)4. 

execution,  100-102,  543,  544. 

fifty  eighth  Article,  156. 

forfeitures,  150-153. 

how  determined.  149,  150. 

interpretation  of  forms  and,  150-153. 
allowances,  157,  158. 
day,  days,  150. 
month,  months,  150. 
pay  and  allowances,  151-153. 

leniency,  grounds  of,  157. 

mandatory,  149. 

month,  months,  150. 

obligation  to  award,  149. 

order  of  voting,  149,  150. 

pay,  151. 

procedure  in  awarding.  149,  1.50. 

publication,  100-162,  166.  .528.  529. 

punishment  order,  149,  727-734. 

recommendation  to  clemency,  1.56,  157. 

record  of.  195. 

remarks  in  connection  with,  154.'  157, 

restrictions  upon,  149,  156. 

rariance  in.  effect,  154. 

voting  upon.  149. 

when  operative.  100.  161. 
Sentinels.    (See  39th  Article  of  War.) 


Sentinels— 0)ji//?i«erf. 

duty  of.  410-412. 

execution  of  orders,  410-412. 

force,  use  iif,  by.  411,  412. 

leaving  post.  409-412. 

quilting  post,  409-412. 

respect  for,  410-412. 

sleeping  on  post,  410-412. 
Separate  brigades,  21,  492,  493  (see  73d  Article  of 
War): 

courts-martial  in,  21. 
SerTice  of  charges,  80.    (See  Charges.) 
Service  of  process,  245-250,  460,  461   (see  Attach- 
ment, and  58/7i  Article  of  War): 

actual  service,  246,  247. 

attachment,  248-250. 

constructive  service,  247. 

how  regulated,  460.  461. 

in  ceded  territory,  460,  461. 

general,  460,  461. 

in  Territories,  460,  461. 

on  reservations,  460,  4G1. 

issue  of  writ,  245. 

judge-advocate,  power  of,  245,  246,  248-250. 

method  of  service,  245-548. 

operation  of  writs,  247. 

personal,  247, 

return.  240.  247. 

subpoena,  245-248. 

time  of  service,  247,  248. 
Sessions  : 

absence  of  judge-advocate,  137. 

absence  of  member,  136,  137. 

adjournments.  135,  136. 

closed  sessions,  135,  191,  192. 

dissolution,  130. 

exclusion  of  persons,  135. 

excusing  members,  136. 

hours  of,  133,  134,  195. 

open,  191,  192. 

order  during,  138,  139. 

place,  135. 

public,  135.  191,  192. 

record  of,  195. 

Sunday,  134. 
Signal  Department,  regimental  courts  in,  499,  500. 

(See  8\st  Article  of  War.) 
Sine  die  »djourninent,  effect  of,  13C. 
Sleeping    on    post,    409-412.     (See  39/;t  Article   of 

War.) 
Soldiers'  Home.  .54. 

amenability  of  inmates  to  military  law,  54. 

government,  54. 

inmates,  54. 

national,  54. 
Solitary  confinement,  187,  188. 

execution.  187,  188. 

restriction.  187, 
Special  orders,  379.    (See  Orders.) 
Specifications.   09-81,  641-643.    (See  Charges  and 

Sjjecificutions.) 
Spies,    53,    543,    562,    .503    (see    105<ft    Article    of 
War)  : 

definition,  53,  562,  563. 


INDEX. 


769 


8pie«-  Continued. 

jurisdiction  over  offense,  r>3. 

triable  by  court-martial,  53. 

offense,  53,  562,  563. 
Spoil,  prohibition  of,  436,  437.     (See  hhth  Article. 

of  War.) 
Spj,  beinK  a,  543  (see  105</t  Article  of  War): 

approval  of  sentence,  543. 
Standinf;  niute,  lid. 

cause,  118. 

effect,  118. 

interpietation,  118. 
State  lawM.  records,  etc.,  evidence,  280,  381. 
Statement.  ISO.  133  (see  Arguments)  : 

accused,  129,  132. 

closing,  1*5. 

defense,  124,  129,  132. 

freedom  of  expression,  132. 

introductory,  119,  129. 

latitude  in,  132,  133. 

opening,  119,132,  133. 

order,  132,  133. 

prosecution,  132,  133. 

record,  1-32. 

signing,  132,  1:33. 

waiver,  132,  133. 
Statement  of  service,  79.    (See  Charge*.) 
State  prison  : 

confinement  in,  169,  185. 
Statutes,  4-6,  272-274. 

Articles  of  War,  339-564. 

at  Large,  272-274. 

interpretation,  343. 

Revised,  272-274. 

supplements,  272-274. 
Statute  of  Limitations,  44,  111-113,  535,  536  (see 
Wid  Article  of  War)  : 

absence  from  jurisdiction,  112. 

absence  from  United  States,  113. 

applies  to  general  courts,  only,  113. 

defense.  111. 

desertion.  Ill,  113. 

effect.  111. 

fleeing  from  justice,  536. 

general,  111. 

how  made  available.  111,  535. 

interpretation,  111-113. 

manifest  impediment,  113. 

matter  of  defense,  111. 

military  offenses.  111. 

nature.  111. 

operation,  111-113,  535. 

pleadmg,  111-113. 

purpose.  111. 

running  of,  112. 

suspension  of.  Hi;,  536. 

waiver,  535. 

when  operative,  112,  535. 
Statotorj  rousequencei  : 

of  desertion,  :J46,  427,  429. 

of  dishonorable  discharge,  183,  l*i. 

of  dismissal,  166. 
Statutory  consequenres  of  desertion  : 

forfeiture  of  allowances,  427-429. 


Statntorjr      roniieqaenceii      of     deiertioa  —  Con- 
tinued. 

forfeiture  of  citizenship,  427-429. 

forfeiture  of  deposits,  427. 

forfeiture  pay,  427-429. 

incapacity  to  enlist,  346. 

making  good  time  lost,  427-429. 

when  operative,  427-429. 
Statutory  otrenite!)  : 

creation  uf,  59. 

interpretation  of,  60. 
Stealing,  449.     (See  Larceny.) 
Stenographer  to  court-martial,  40,  41: 

appointment,  4L>,  41. 

compensation,  40. 

duty,  40,41. 

oath,  40. 
Stolen  good*,  receiving,  452. 

Stoppages,  177-179,  370-372,  434,  435  (see  50<;i  Arti 
cle  of  War)  : 

authority  for,  370. 

character,  177,  179. 

definition,  370,  371. 

distinguished  from  forfeitures,  178,  371. 

for  injury  to  citizen,  435,  436. 

how  made,  179,  370-372. 

injuries  to  citizens,  180,  181,  435,  436. 

pecuniary  character,  179. 

reparation  for  injury,  434,  435. 

sentences,  177-179. 
Subpoeuas,   245-218  : 

actual  service,  246,  247. 

affidavit  of  service,  847. 

authority,  245. 

by  whom  issued,  24.5,  246. 

by  whom  served,  216-248. 

civilian,  245,  246. 

constnictive  service,  247. 

habeas  corpus  ad  testificandum,  846. 

method  of  service,  246,  247. 

militarj-  persons,  245. 

operation  of  writ,  247. 

return,  246,  247. 

service,  by  whom  made,  246,  247. 

subpoena  duces  tecum,  246. 

time  of  service.  247.  248. 
Substance  of  issue,  271,  272  (see  Evidence)  : 

definition,  271. 

how  proved,  271. 
Substitutions,  142.    (See  Finding.) 
Succession  to  command,  559.  560. 
Summary  Court.  25.211-213: 

approval  of  sentences,  215. 

authority  for.  25. 

composition,  25,  213. 

constitution,  25.  212.  213. 

jurisdiction,  212,  213. 

origin,  212.  213. 

previous  conviction,  215. 

procedure,  214. 

record,  215. 

report,  216. 

review,  215. 
Summons,  for  military  persons,  345. 


i  i 


0 


INDEX. 


SBromODB — Continued. 

by  whom  issued,  245. 

by  whom  served,  345. 

channel  of  service.  245. 
Sunday,  sessions  on,  134. 
Snperinteudent  of  .Military  Academy: 

convening  aiitiiority.  22. 

power  to  punish.  22,  note. 

reviewing  aiithorit}',  22. 
Superior  ofBcer,  striking,  etc..  387,  388. 
Snpplenients  to  Kevised  Statutes,  272-273. 

evidential  value,  272,  273. 
Suppression  of  disorder,  etc.,  393,  394  (see  24t/i  Ar- 
ticle of  War)  : 

arrests.  339,  394. 

duty  of,  393,  394. 

oflBcers,  interpretation  of  term,  393. 
Surgeon's  report,  79  (see  Charges) : 

purpose,  79. 

when  submitted,  79. 
Suspension,   171-174,  529-533  (see   101st  Article  of 
War)  : 

allowances,  173. 

cadets,  174. 

command,  171-173,  529-533. 

commissioned  officers,  171-174,  529-533, 

effects,  171-174,  530-533. 

emoluments,  171,  172. 

files,  loss  of,  532,  533. 

forms  of,  529-533. 

loss  of  rank,  532,  533. 

pay,  529,  533. 

promotion,  effect  on,  530. 

quarters,  172. 

rank,  529-533. 

status  of,  171-173. 

termination,  173. 

when  operative.  173. 
Suspension  of  privilege  of  writ  of  habeas  corpus, 
.320.    (See  Habeas  Corpus) : 

effects,  322. 

how  suspended,  322. 

legislative  power,  320-322. 
Suspension  of  sentence,  546  (see  111th  Article  of 
War)  : 

procedure,  546. 

purpose,  546. 

transmission  of  copy  of  record  to  President,  546. 
Suspension  of  statute  of  limitations,  536.  (See  103d 

Article  of  War.) 
STrearin;  court,  91-96  (see  84</i  and  85(A  Articles  of 
War) : 

judge-advocate,  92. 

member,  91,  92. 

oath.  92. 

president,  91,  92. 

procedure,  91,  92. 
Sword,  surrender  of,  by  arrested  cflBcer,  481  (see 
Chth  Article  of  War)  : 

wearing  of,  on  arrest,  481. 
Tattooing,  prohibited,  524.    (See  Punishments.) 
Territories  : 

jurisdiction  of  courts,  460. 


Territories — Continued. 

laws  of,  460. 

process,  service  of,  460,  461. 
Testimony,  119-121,  129-132,  261-285  : 

administration  of  oath,  119,  129. 

admissions  against  interest,  269,  270. 

admissions  without  proof,  292. 

affirmations,  119. 

character,  130,  265,  266. 

close  of  defense,  132. 

close  of  prosecution,  124. 

competency,  251,  216-285. 

conduct  of  defense,  129,  130. 

conduct  of  prosecution,  123. 

confessions,  268,  269. 

court,  examination  by,  122,  130. 

cross-examination,  285,  286. 

declarations  against  interest,  269,  270. 

declarations,  dying,  269,  270. 

direct  examination,  120. 

documentary,  263,  275-285. 

erasures,  284,  285. 

examinatinti  by  accused.  129. 

examination  by  judge-advocate,  120. 

examination  of  witnesses,  285,  290. 

exclusion  of,  130,  131. 

form  of  oath,  119. 

leading  questions.  121. 

method  of  examination,  120, 121. 

oath,  119. 

objections  to  testimony,  122. 

oral,  263. 

order  of  examination,  120. 

presumptions,  298,  299. 

questions  by  accused,  120, 129. 

questions  by  court,  120,  122,  130. 

reading  over  to  witness,  121. 

record  of,  192-194. 

relevancy  of,  263,  266. 

separation  of  witnesses,  119,  120. 

substance  of  issue,  271,  272. 

written  questions,  121. 

writings,  263.  27.5-285. 
Territorial  laws,  records,  etc.,  280,  281. 
Theft,  449.  (See  Larceny.) 
Tie  vote,  146  (see  Finding): 

effect,  146,  note. 
Time  lost  in  desertion,  etc.,  427-429. 
Trees,  waste  or  spoil  of,  436,  437. 
Trespass,  prevention  of,  436,  437.   (See  64th  Arti' 

cle  of  War.) 
Trespassers,  removal  of,  328-331. 

on  Indian  lands,  328,  331. 

on  public  lands,  331. 
Trial,  83-162: 

absence  of  members   or  judge-advocate,  136, 
137. 

accused,  appearance,  83,  84. 
defense,  129. 
introduction,  83. 

adjournments,  135. 

arguments,  132,  133. 

arraignment,  96-118. 


12sDEX. 


Trial  — ronfinufff. 

assfiiiblin^  of  court,  83. 

Dehavior  of  members,  138. 

challeuges,  t<5-90. 

clerk.  H5. 

closed  sessions,  13-1. 

contempt  of  court,  139. 

continuances,  90,  91. 

conveiiin^,'  orders,  85. 

counsel,  81. 

defen.se,  l',M-133. 

deliberations,  138. 

demurrers,  113. 

intniduction  of  accused,  83-124,  132,  133. 

judKeadvocate.  83. 

counsel.  83,  134,  132,  133. 

stenographer,  84,  S.";. 

meeting  of  court,  82. 

new,  "133-535. 

nolle  prosequi,  118. 

oath,  91-96. 

order  of  voting.  149,  150. 

organization  of  i^ourt,  82,  93. 

pleading,  96. 

pleas,  90-118. 

postponements,  90.  91. 

preliminary  matters.  82. 

previous  convictions,  147,  148. 

prosecution,  119-124,  132,  133. 

quorum,  71,  72. 

rank  of  members,  82,  83. 

reading  charges,  90. 

reading  convening  order,  85. 

reading  proceedings,  121,  129. 

reading  testimnny,  121,  129. 

reconimendations  to  clemency,  156,  157. 

reporter,  84. 

revision  proceedings,  158-100. 

seating  of  members,  82. 

second  trials,  533-535. 

sentence,  148-158. 

stenographer,  84. 

swearing  of  court,  91-96. 

voting  on  finding,  141. 

voting  on  sentence,  149,  150. 

voting,  order  of,  141,  149. 
TribonaU,  13-16.    (See  Military  Tribunals.) 
Troops,  .Vrticles  of  War  to  be  read  to,  562. 
Twice  in  jeopardjr,  53.3-535.    (See  102d  Article    of 

War.) 
Unbecoming  conduct,  468-472.    (See  tUt  Article 

of  War.) 
Unwritten  military  law,  10. 
Usages,  10-12  (see  Citstoms  of  Service)  : 

distinguished  from  customs,  12. 

not  a  defense,  12. 
Variance  in  sentence,  154. 
Vice-Prenident,    contemptuous  or   disrespectful 

wfirds  against,  375,  376. 
Tiolation  of   pledge,   470.     (See  Clsf  Article   of 

War.) 
Tiolence,  to  persons  and  property,  435-438  : 

reparation  for,  435,  436. 


Toir  dire.  88.  260,  2C1. 

procedure.  200.  261. 

when  admissible,  260,  261. 
Volunteers,  27,  479,  480,  f<61  (see  (4th  Article  of 
War)  : 

composition  of  courts-martial,  27. 

officers  of,  rank,  etc.,  561. 

rank,  561. 

subject  to  Articles  of  War.  479,  460. 
Votinff,    31,    141     (see     Fimling    and   Sentence; 
see  also  95(/i  Article  of  War)  : 

basis,  142. 

finding,  141. 

order,  141. 

sentence,  149. 

tie.  142.  140. 
WaiTer  of  challenge,  87. 
WalliK,  waste  or  spoil  in,  436,  437. 

law  of,'.543  (see  W5th  Article  of  War). 

spies,  562,  503. 
Warrens,  waste  or  spoil  in,  430,  137. 
Waste,  penalty  for,  436,  437.    (See  55f/i  Article  of 

War.) 
Watchword,     416,     417    (see    44th     Article    of 
War)  : 

countersign,  416,  417. 

making  known,  416,  417. 

parole,  417. 

purpose,  416.  417. 
Withdrawal  of  charges,  75.    (See  Charges.) 
Witnesses  : 

accused  as,  131.  132. 

administration  of  oath,  119, 

affirmations.  119. 

attachment.  248-250. 

calling  of.  by  court,  130. 

cross-examination,  120. 

direct  examination,  120. 

examination,  119-130. 

fees.  713-715. 

form  of  oath.  119. 

introduction  nf.  119. 

judge-advocate  as.  131. 

leading  questions,  121. 

list  of,  75. 

member  as,  131. 

method  of,  119-124. 

oath,  119. 

prosecuting,  123. 

questions  to.  120,  121. 

reading  over  testimony  to,  121. 

re-examination,  120. 

separation  of,  119,  120. 

summoning,  245-250. 
Work  required  of  prisoners,  485. 
Writinifs,  27.5-285  (see  Documents): 

comparison,  284. 

private,  2K;i-285. 

public,   275-283. 
Writ  of  attachment,  248-250  (see  AttachmenO  : 

application,  248. 

by  whom  served.  248. 

habeas  corpus,  314-328. 


77-2 


INDEX. 


Writ  of  attachment— Confiwued. 
judge-advocate,  power  of,  248,  249. 
jurisdiction  to  issue,  2-18,  249. 
nature  cf  writ,  248. 
operation  of  writ,  248,  249. 
power  to  issue,  248,  849. 

restriction  on,  248,  349. 
subpoena,  246,  247. 


Written  military  law,  3-9. 

Articles  of  War,  3. 

decisions  of  courts,  etc.,  6. 

enactments  of  Congress,  4. 

opinions,  etc.,  6. 

orders,  9. 

regulations,  6-9. 
Wrongs,    redress  of,  224-288. 
Wrongs.) 


(See   Redreu  of 


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